People v Charles

[*1] People v Charles 2009 NY Slip Op 51524(U) [24 Misc 3d 1219(A)] Decided on June 11, 2009 Supreme Court, Kings County DiMango, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2009
Supreme Court, Kings County

People of the State of New York,

against

Michael Charles, Defendant.



957/2007



ADA Tonya Kerry

Office of the District Attorney, Kings County

Renaissance Plaza

350 Jay Street

Brooklyn, New York 11201-2908

Defendant was pro-se.

Patricia DiMango, J.

The defendant, pro se, moves to vacate his judgment of conviction on the ground that (1) he received ineffective assistance of counsel in that counsel (a) failed to "file pre-trial motions . . . on behalf of defendant;" (b) failed to "conduct any legal research in defendant's case;" (c) failed "to communicate information regarding viable defense[s]" prior to advising the defendant to plead guilty; (d) failed to " place understanding of a plea on the record;" (e) failed to demand a Dunaway hearing on the probable cause to arrest the defendant; (f) failed to demand a hearing for the suppression of physical evidence seized from the defendant; (g) failed "to locate and call [a] significant witness;" (h) failed "to read the hospital records and speak to the doctors" relative to the "top charge;" (I) failed to "conduct any legal research [FN1] in defendant's case;" (j) failed to advise the defendant of his right to appeal; (k) failed "to honor the request of [the defendant's] wishes to appeal, therefore robbing [him] of a post conviction remedy;" and the defendant further ascribes ineffective assistance of counsel to the representation he received by virtue of defense counsel's failures (2) to bring to the court's attention that the defendant did not understand English well and/or to request an interpreter for him; (3) to visit him more frequently and discuss defense strategy with him; and (4) to provide him with copies of all of the papers in his case.

The People have opposed this application in all respects, and request denial thereof, [*2]without a hearing.

In deciding this motion, the court has considered both parties' motion papers including the People's attached exhibits,[FN2] the plea and sentencing minutes, and the official court file. Upon due consideration of all of the above and the governing law, the court herein determines that the motion is denied.

Background

The defendant was originally charged, under the instant indictment, with two counts each of Rape in the First Degree and Sexual Abuse in the First Degree, as well as three counts each of a Course of Sexual Conduct Against a Child in the First and Second Degrees, and Endangering the Welfare of a Child (four counts), with respect to events which occurred during four discrete time periods between September, 2003 and November 30, 2006.

The People alleged that the defendant had had sexual intercourse with the subject child, who was less than 11 years old at the time, repeatedly during this span of time and that she was ultimately impregnated by him.

After several court appearance dates following his (February 27, 2007) Supreme Court arraignment (during which time the People were awaiting and finally received the DNA test results on the victim's fetus which they claim established that the defendant was the person who impregnated the child), on May 1, 2007 the defendant was made an offer to plead guilty to one count of Rape in the First Degree and one count of Endangering the Welfare of a Child, for a promise of concurrent imprisonment sentences of 20 years and one year, respectively. This offer was apparently rejected and then retracted, following which the offer was increased to a sentence of 21 years (on July 17, 2007). The case then continued along, on track for trial, until September 25, 2007, when the defendant was re-offered and ultimately decided to accept the original plea offer of 20 years for a plea of guilty to Rape in the First Degree, together with one concurrent year on a guilty plea to the endangerment charge.

When the parties came before the court on September 25, 2007, the court announced that it had reviewed the Grand Jury minutes upon the defendant's motion to inspect and dismiss, had found the evidence sufficient to sustain each count of the indictment, and thus was denying the motion in its entirety. The court next observed that the current plea offer was for 20 years' incarceration [FN3] and that the maximum for a single count [of Rape in the First [*3]Degree] was "25 years." In response to this, defense counsel stated that Mr. Charles had advised that he wanted to accept that offer that day.

The defendant thereupon was sworn in and proceeded to change his plea and enter pleas of guilty. During the course of these proceedings, the defendant responded to all of the court's inquiries and answered affirmatively that he was satisfied with his attorney's help and that, "yes, [he had] talked about [his] case with him." Additionally, the defendant indicated his understanding of the rights he was giving up by taking a plea and not going to trial.

Upon his plea allocution the defendant admitted that he had engaged in sexual intercourse with a child less than eleven years old between September 1, 2006 and November 30, 2006 in Kings County. In response to the court's inquiry, the defendant affirmed that he had not been threatened or coerced into pleading guilty and that he was not under the influence of any drugs or alcohol. Further, the defendant executed the form reflecting his waiver of his right to appeal after discussing the matter with his attorney and he acknowledged for the court that he did so voluntarily and that he understood his waiver. Finally, the defendant confirmed that all of his answers had been truthful and he indicated that he had understood all of the court's questions.

On October 16, 2007, the defendant was before the court for sentencing. Prior to rendering sentence, the court stated for the record that, according to the Probation report, the defendant had admitted his guilt to the Department of Probation, specifically admitting that he had had sexual intercourse with the child victim. Neither side noted any reason why sentence could not then be imposed in accordance with law and with the plea agreement. The court then sentenced the defendant as promised. Significantly, there was no application to withdraw the plea prior to the imposition of sentence, nor any statement by the defendant as to a lack of understanding of what was going on or regarding difficulties communicating with counsel. (However, the minutes for these proceedings are silent as to any person advising the defendant of his right to appeal.)

Discussion

The defendant, now represented by different counsel, is seeking herein to vacate his conviction, primarily on grounds of ineffective assistance of counsel, having specifically moved for relief pursuant to CPL 440.10 (1)(h). He further intimates that his plea was not intelligently, knowingly, and voluntarily made due to his lack of understanding both of the English language and of his chances of success at trial. (The court observes that the defendant's claims are basically presented in boilerplate fashion, with very few factual details provided to substantiate the omissions alleged.)

In the People's opposing affirmation, the Assistant District Attorney (ADA) generally observes that the defendant's assertions are unsubstantiated and insufficiently alleged to even create issues of fact, and, in addition, many are procedurally barred. The People further note that the defendant had never appealed from this conviction, and that CPL 440.10 may not be employed as a substitute for direct appeal. Lastly, to further rebut the defendant's claims, the [*4]People have submitted the affidavit of defendant's former defense attorney, Edward Mandery, Esq., wherein Mr. Mandery contradicts and refutes many of the defendant's factual assertions regarding his alleged lack of performance or deficient performance, in addition to disputing the defendant's claim of not understanding English.

As a starting point for the court's analysis, the court observes that, at no point during the plea proceedings did the defendant ever deny that he committed any of the offenses charged, nor is there anything in the plea minutes which either casts significant doubt upon the defendant's guilt or calls into question the voluntariness of his plea (cf., People v Lopez, 71 NY2d 662, 666-668). Furthermore, while entering his plea, Mr. Charles did not allude to having any defenses to the charges or any evidence or witnesses which would establish his innocence or serve to mitigate the charges or cast doubt on his guilt. Nor did the defendant make any statements or raise any claims prior to sentencing [FN4] to call into question his guilt or the voluntariness of his plea. Finally, the defendant did not appear to have any difficulties comprehending the proceedings or in understanding the English language in general, and did not make any such claim in court. On the contrary, no judge presiding over this case ever ordered a translator for the defendant, nor does the official court file bear any notice that the defendant required an interpreter.

Thus, upon this record, the court concludes that Mr. Charles' plea of guilty was knowingly, voluntarily, and intelligently entered and that the defendant fully understood the implications and consequences of his plea (see, People v Harris, 61 NY2d 9, 16-20). Moreoever, there is nothing in the record to indicate or even suggest that the defendant did not adequately comprehend the English language and that he should have been provided with a language interpreter, for whatever [FN5] language.

Having determined that the defendant's plea was voluntarily entered, and observing that the defendant here is not contesting the voluntariness of his plea, the court finds that the entry of his plea effected a forfeiture of the very claims Mr. Charles is seeking to raise here to undermine his plea and conviction.

For, as the Court of Appeals continues to note, "[a] plea of guilty . . . generally marks the end of a criminal case, not a gateway to further litigation (People v Taylor, 65 NY2d 1, 5). As a rule, a defendant who in open court admits guilt of an offense charged may not later [*5]seek review of claims relating to the deprivation of rights that took place before the plea was entered (see, People v Di Raffaele, 55 NY2d 234, 240; see also, Tollett v Henderson, 411 US 258, 267). This is so because a defendant's conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial' (People v Di Raffaele, supra, at 240). A guilty plea will . . . also effect a forfeiture of the right to revive certain claims made prior to the plea.[]"A guilty plea does not, however, extinguish every claim on appeal. The limited issues surviving a guilty plea in the main relate either to jurisdictional matters . . . or to rights of a constitutional dimension that go to the very heart of the process (such as the constitutional speedy trial right, the protection against double jeopardy or a defendant's competency to stand trial) [citations omitted].[] The critical distinction is between defects implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not.[]"[FN6]

Accordingly, a claim of ineffective assistance of counsel is barred by a guilty plea unless the allegations relate to the voluntariness of the plea,[FN7] as the question of voluntariness survives a guilty plea [FN8] but evidentiary and technical matters do not.[FN9] Here, by contrast, the defendant's claims criticizing the performance of his prior attorney all relate to specific actions counsel allegedly took or did not take with respect to preparing the case for trial and as to communicating with him (Mr. Charles); the defendant does not charge that Mr. Mandery coerced him into taking the plea, and thus his claims here do not survive the taking of the plea.

None of the defendant's assertions, (1)(a) through (1)(k), nor claims (3) and (4), relate to the voluntariness of the plea; as such, all of them are barred by Mr. Charles' plea, and further, by his waiver of appeal.[FN10] The only claim potentially implicating the voluntariness [*6]of the defendant's plea, namely his alleged lack of sufficient comprehension of the English language, has already been addressed above, and, as discussed, must fail.

The motion to vacate the judgment on all of these grounds is, accordingly, denied for the foregoing reasons.

Additionally, the court would observe that most of the complaints herein raised by the defendant regarding alleged or perceived deficiencies in his prior attorney's performance are belied by the defendant's own statements that he had discussed the case with counsel and was satisfied by the services his attorney had rendered.

Furthermore, and in any event, CPL 440.30 (4) (b) permits a court to deny a motion to vacate a judgment without a hearing if the moving papers do not contain sworn allegations as to all essential facts. [FN11] Thus, supporting affidavit(s) must be from a person having actual or personal knowledge of the facts at issue.[FN12]

Consequently, when a claim of ineffective assistance of counsel is based upon defense counsel's alleged failure to call a witness, the moving papers must contain an affidavit from such witness setting forth the substance of the witness' testimony.[FN13] Here, the defendant has failed to provide any such document, or to even allege that such a witness actually existed and possessed material information. Rather, Mr. Charles has made empty, boilerplate accusations, which are unsupported as well as rebutted by former counsel's affirmation [FN14]. Additionally, certain claims are belied by the record [FN15]. [*7]

Similarly, where the claim is that counsel failed to investigate or discover exculpatory evidence, in order to show prejudice the movant must establish both the content of the evidence that would have been discovered and the nature of such evidence, and that it would have caused him to reject the plea and proceed to trial.[FN16] Additionally, the moving papers must contain an affidavit from the witness or witnesses, as would have been discovered by proper investigation, setting forth the substance of such witness(es)' testimony.[FN17]

However, regarding these claims as well, the defendant has submitted no affidavits either from witnesses that should have been interviewed, from witnesses that would have been discovered by further investigation or from any person with actual knowledge of the facts.

Accordingly, the motion to vacate the judgment based on claims (1) (g) and (1) (h) is, therefore, additionally denied for failure to supply proper supporting affidavits.

Since virtually all of the defendant's claims upon this motion implicate the effectiveness of counsel, some discussion of this right in the context of a plea is warranted.

A defendant has a right under both the Federal [FN18] and State [FN19] Constitutions to effective assistance of counsel in the plea process. The Federal Constitution requires a defendant to prove that counsel's performance fell below an objective standard of reasonableness and prejudiced defendant.[FN20] Under the State Constitution, "[i]n the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of [*8]counsel."[FN21] Where "a defendant, on the advice of counsel, has entered a plea of guilty and reaped the benefits of a favorable plea bargain which substantially limits his exposure to imprisonment, he has received adequate representation."[FN22]

Thus, regarding an accused's Federal Constitutional right to effective assistance of counsel in the context of a plea, the United States Supreme Court stated in Hill [FN23]:

"In other words, in order to satisfy the prejudice' requirement, the defendant must show 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 [emphasis supplied]."

Accordingly, to establish his Federal Constitutional claim here, the defendant "must show" that were it not for defense counsel's alleged deficiency, there is a "reasonable probability" that he would not have pleaded guilty and "would have insisted on going to trial."[FN24] Under New York law, most New York courts also require that a defendant show that he or she would have insisted on going to trial if not for defense counsel's alleged error.[FN25]

Under any standard for the effective assistance of counsel, the defendant here has failed to establish that he was denied same, i.e., that, absent his defense counsel's alleged deficiencies, he would not have taken the plea.

Thus, these claims are legally and factually baseless. Moreover, the defendant cannot argue here that his plea was not advantageous (given the potential for four consecutive sentences) and he has not alleged that he was innocent or had any defenses whatsoever to any of the charged crimes.

While he also claims that counsel was ineffective in encouraging him to waive his appeal right, the defendant has not submitted a single appealable issue that could have had any merit. Also, the waiver of appeal was a condition of the plea, without which the defendant could not have obtained a favorable sentence. In light of the maximum sentences [*9]provided by statute for these offenses, coupled with the potential of consecutive time, the defendant did obtain a favorable sentence. Further, the defendant has failed to demonstrate the requisite prejudice to succeed on his charge that former counsel failed to advise him of his right to appeal.

Similarly without merit is the allegation that counsel was ineffective in failing to file a notice of appeal. There was no appealable issue on which to take an appeal, and the defendant had voluntarily waived his right to appeal, which was a condition of the plea, thereby severely limiting the claims which could be appealed notwithstanding the waiver. In any event, such claim is improperly brought in this court. The appeal issues (namely, ineffective assistance of appellate counsel) can only be raised in a corum nobis proceeding in the Appellate Division.[FN26]

In conclusion, the reasonableness of defense counsel's actions must be viewed in the context of the factual circumstances of this case. Had the defendant here been convicted of all the charged crimes, he faced significant time, namely, the possibility of consecutive sentences for incidents which occurred during four separate time periods, time far in excess of the flat 20-year incarceration sentence defense counsel was able to negotiate for him. Indeed, the court was even loathe to impose the negotiated sentence, finding it too lenient, but ultimately did consent to imposing it in order to spare the young victim the ordeal of a trial. Accordingly, in view of the foregoing, particularly the defendant's greatly reduced incarceration exposure, the court finds that Mr. Charles did receive effective assistance of counsel, and he has made no showing to the contrary.

Thus, the application to vacate the judgment because of ineffective assistance of counsel is denied on the merits as well as on procedural grounds.

In conclusion, the defendant's motion is, respectfully, denied in all respects.

This constitutes the decision and order of the court.

The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal from this determination. This application must be made within 30 days of service of this decision. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing.

Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted.[FN27]

ENTER , [*10]

J. S. C.

Footnotes

Footnote 1: The court notes that defendant's claims (b) and (i) are identical, but has listed them both in order to preserve the original denomination of his claims and to avoid confusion.

Footnote 2: The exhibits include police reports containing the defendant's statements, the Miranda warnings given to the defendant, and the affidavit of the attorney who represented the defendant throughout the Supreme Court proceedings.

Footnote 3: A short while later, the court placed the plea particulars on the record for the defendant's information and further advised the defendant of the additional ramifications of his plea, namely, that it included five years' post-release supervision and that at some future time, prior to his ultimate release, there would be a Sex Offender Registration Act proceeding.

Footnote 4: Indeed, Mr. Charles admitted his guilt to the Department of Probation and made no statements to the court before sentence was imposed.

Footnote 5: Interestingly, while the defendant asserts in his moving papers that English is his second language and that he does not understand it that well, stating that he is from Haiti [although he is apparently now a naturalized United States citizen], he never indicates what his first language even is, be it Creole or French or something else.

Footnote 6: People v Hansen, 95 NY2d 227, 230-231( 2000); see also, People v Konieczny, 2 NY3d 569, 572-575 (2004).

Footnote 7: People v Petgen, 55 NY2d 529, 534-535; rearg. denied, 57 NY2d 674 (1982); People v Eaton, 14 AD3d 577, 577-578 (2005); People v Thomas, 6 AD3d 754, 755 (2004).

Footnote 8: People v Seaberg, 74 NY2d 1, 10 (1989).

Footnote 9: See also, People v Green, 75 NY2d 902, 906-908 [dissent] (1990).

Footnote 10: See generally, People v Seaberg, supra; see further, People v Eaton, supra, 14 AD3d at 577-578; People v Demosthene, 2 AD3d 874, 874 (2nd Dept. 2003), lv. denied, 2 NY3d 761; People v Herring, 274 AD2d 525, 526, lv. denied, 95 NY2d 906 (2000); People v Nicholas, 272 AD2d 629, 630, lv. denied, 95 NY2d 937 (2000), habeas corpus denied, 2007 WL 1213417 (2007), aff'd, 2009 WL 1331348 (2009).

Footnote 11: People v Wells, 265 AD2d 589, 589 (1999), error coram nobis denied, 284 AD2d 486; People v Lawson, 191 AD2d 514, 515, lv. denied, 81 NY2d 1075 (1993); see also, People v Session, 34 NY2d 254, 255-256 (1974).

Footnote 12: See, People v Pan, 245 AD2d 149, 150 (1st Dept. 1997), lv. denied, 91 NY2d 977; People v Taylor, 211 AD2d 603 (1st Dept.), lv. denied, 85 NY2d 981 (1995).

Footnote 13: People v Ford, 46 NY2d 1021, 1023 (1979); People v Session, supra, 34 NY2d at 256.

Footnote 14: Mr. Mandery avers that he did have conferences with the defendant and discussed his case with him; further, he had no difficulties doing so in the English language and neither the defendant or any family member ever asked that he be given an interpreter. Counsel also corresponded with the defendant regarding defense strategy and had provided Mr. Charles with all the relevant documents and paperwork regarding his case.

Footnote 15: For example, the defendant charges that former counsel never filed any pre-trial motions on his behalf. However, defense counsel had made a motion to inspect the Grand Jury minutes herein. Additionally, since the People had consented to open file discovery, the defense obtained materials without the necessity of motion practice; and, the People also consented to necessary hearings. Moreover, the plea took place before any hearings could have been held. Similarly, the claim that counsel failed to place the plea understanding on the record is baseless, as the plea minutes speak for themselves.

Footnote 16: People v Escalante, 16 AD3d 984, 985 (3rd Dept.), lvs. denied, 5 NY3d 788, 793 (2005), habeas corpus denied, 2009 WL 1405440 (2009); see also, Hill v Lockhart, 474 US 52, 58-59 (1985); People v McDonald, 1 NY3d 109, 113-114 (2003).

Footnote 17: People v Session, supra, 34 NY2d at 256; People v St. John, 163 AD2d 687, 688 (3rd Dept.), lv. denied, 76 NY2d 944 (1990); see also, People v Ford, supra, 46 NY2d at 1023.

Footnote 18: Hill v Lockhart, supra, 474 US 52.

Footnote 19: People v Ford, 86 NY2d 397, 404 (1995).

Footnote 20: Hill, supra, 474 US at 57.

Footnote 21: Ford, 86 NY2d at 404.

Footnote 22: People v McClure, 236 AD2d 633, 633 (2nd Dept.), lv. denied, 89 NY2d 1097 (1997); see also, People v Thomas, supra, at 755.

Footnote 23: 474 US at 59.

Footnote 24: Id.; see also, People v McDonald, supra, 1 NY3d at 114-115; cf., People v Catu, 4 NY3d 242, 245 (2005) [no such showing required where defendant not advised of direct consequences of plea].

Footnote 25: People v Atkins, 12 AD3d 376, 376-377 (2nd Dept. 2004); People v Ammarito, 306 AD2d 99, 100 (1st Dept.), lv denied, 100 NY2d 640 (2003), appeal withdrawn, 3 NY3d 635 (2004); People v Rodriguez, 188 AD2d 623 (2nd Dept. 1992), lv denied, 81 NY2d 891; People v Ahmetovic, 157 AD2d 489, 489-490 (1st Dept. 1990), lv denied, 75 NY2d 963.

Footnote 26: People v Bachert, 69 NY2d 593, 594-597, 600 (1987).

Footnote 27: 22 NYCRR § 671.5.