People v Rosales

[*1] People v Rosales 2009 NY Slip Op 51770(U) [24 Misc 3d 1236(A)] Decided on July 10, 2009 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2009
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Ricardo Rosales, Defendant.



2132-2001

Richard Lee Price, J.

On July 15, 2003, judgment was entered against this defendant pursuant to his plea of guilty to manslaughter in the first degree (PL 125.20). Upon that plea, this court sentenced defendant to a determinate term of 16.5 years imprisonment and a period of five years post-release supervision. By motion submitted on May 15, 2009, defendant now moves to vacate his judgement of conviction pursuant to CPL 440.10 (1) (h) claiming that he was deprived of his constitutional right to effective assistance of counsel in that his guilty plea was not knowing and voluntary because counsel failed to properly advise him with respect to the charge for which he was pleading guilty. Defendant further claims this court failed to inform him of the duration of post-release supervision and that his sentence of 16.5 years was excessive.

In opposition to the defendant's motion, the District Attorney argues that the defendant's claims must be summarily denied pursuant to CPL 440.10 (2) (c) because they are record-based, reasoning that they should have been raised on direct appeal and unjustifiably were not. The District Attorney also argues that the defendant's plea colloquy was legally sufficient, that the waiver of his right to appeal was valid, and that the term of post-release supervision was properly pronounced and imposed at sentencing. Regarding defendant's 16.5 term of imprisonment, the District Attorney argues that while it is not excessive, it must nevertheless be summarily denied pursuant to CPL 440.10 (2) (d).

For the reasons stated below, defendant's motion to vacate his judgement of conviction is denied in its entirety.

A. Ineffective Assistance of Counsel

Where a defendant claims that he was deprived of effective assistance of counsel, prevailing authority requires him to demonstrate that counsel's representation was deficient and that he was prejudiced by such deficient performance. (Strickland v Washington, 466 US 668, 104 S Ct 2052 [1984]). In order to prevail, the defendant must establish both that counsel's [*2]representation fell below an objective standard of reasonableness and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Id at 694). This court notes that in evaluating defendant's claim, "[t]he performance and prejudice prongs of Strickland may be addressed in either order, and if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.'" (Green v Portuondo, 2003 US Dist LEXIS 24342 [2003], quoting Strickland at 668). Thus, with regard to defendant's claim that his guilty plea was not knowing and voluntary, this court must determine that notwithstanding whether counsel erred, which this court believes he did not, " 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.'" (US v Hernandez, 242 F3d 110, 112 [2d Cir. 2001], quoting Hill v Lockhart, 474 US 52 [1985]).

i. Reasonable Probability

As indicated, in order for a defendant to show the requisite prejudice to establish this prong, the defendant must show that, but for counsel's alleged failures, there is a reasonable probability that he would not have pled guilty and insisted on proceeding to trial. However, merely making such an assertion, by itself, is insufficient. To satisfy Strickland, a defendant must put forth objective evidence in support of such a claim. (Sharpley v US, 499 F Supp 2d 208, 212 [2007]).

Here, defendant argues that despite repeated requests, counsel failed to furnish him with court documents and denied him an opportunity to have a meaningful consultation. Consequently, the defendant reasons that he neither truly understood the charges against him nor fully comprehended that he was pleading guilty to manslaughter in the first degree. However, while the defendant asserts, "[i]f Mr. Stevens [FN1] had furnished Mr. Rosales with the requested documents, Mr. Rosales would have been fully informed of the charges against him, and unlikely to plead guilty to Manslaughter in the First Degree," he abjectly fails to explain why such a plea would have been "unlikely." He merely states in a wholly conclusory fashion that but for counsel's alleged failures, he would have insisted on proceeding to trial. Moreover, the record is devoid of any objective evidence to support his claim and the defendant provides none.

Since defendant failed to demonstrate that he was prejudiced by counsel's perceived failures, this court need not consider whether counsel's performance was, in fact, deficient. Were this court to do so, however, it would find defendant's claim that counsel's representation was deficient to be without merit. Other than his conclusory and unsupported assertion that counsel failed to provide effective assistance, defendant fails to provide any credible basis to controvert the plea record.

ii. Knowing and Voluntary Plea

Defendant asserts that:

In the People's theory of the case, the [sic] gun is handed from Rosales to Lucero and then [*3]ultimately it is handed to the eventual shooter Mr. Fernandez . . . [is] a break in the chain between Mr. Rosales and the actual shooter bring [sic] into question whether or not a prima facie [sic] case was made out by the allocution . . . [and] demonstrates why Mr. Rosales would have serious questions (that appear to go unanswered by his counsel or the Court) about his plea to Manslaughter in the First Degree. The version that was forced on Mr. Rosales also differs from the allocution sworn to on the record during the plea allocution of the co-defendant.

Defendant also asserts that "it was never explained to Mr. Rosales that he would be pleading to manslaughter in the first degree" along with a litany of other assertions, including that the plea was ambiguous, that this court should have offered a recess for counsel to further explain the plea and that this court should have conducted a more extensive allocution. These assertions are entirely unsubstantiated and refuted by the record.

It is commonly held that "[s]tatements made during a plea allocution are presumptively true absent credible reason[s] justifying departure from their apparent truth.'" (Holbdy v US, 2008 US Dist LEXIS 52441 [2008], quoting US v Gonzalez, 970 F2d 1095, 1101 [2d Cir 1992]. On the rare occasion, however, when "the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea," the Court of Appeals has held that the trial court must inquire further to ensure that defendant's guilty plea is knowing and voluntary." (People v Lopez, 71 NY2d 662, 666 [1988]).

Here, however, defendant's claim that his plea was not voluntary and knowing "are belied by the record and are contrary to his express representations at the plea allocution." (Oyague v Artuz, 274 F Supp 2d 251, 261-62 [2003]; see also People v Escalante, 2007 NY Misc LEXIS 3039 [2007]). The record of defendant's plea allocution, which was conducted through an official court interpreter, clearly reflects that this court asked the defendant if he authorized counsel to enter a plea of guilty to manslaughter in the first degree on his behalf. After responding, "yes", defendant then affirmatively replied that he had an adequate opportunity to consult with counsel and that he understood his plea.

THE COURT:Have you authorized your attorney, Mr. Sachs, to withdraw your plea of not guilty to the charges contained in indictment number 2132 of the year 2001 and to enter a plea of guilty to the third count of this indictment, manslaughter in the first degree to cover this indictment? Is that what you have authorized your attorney to do on your behalf?

THE DEFENDANT:Yes.

***

THE COURT:Have you had an adequate opportunity to confer with your attorney?

THE DEFENDANT:Yeah.

THE COURT:Do you understand all that we have done so far?

THE DEFENDANT:Yes.

THE COURT:Are you therefore pleading guilty of yourown free will? [*4]

THE DEFENDANT:Yes.

THE COURT:Are you pleading guilty because you are guilty?

THE DEFENDANT:Yes.

The record further reflects that the defendant was informed of the charge to which he was pleading guilty. When the defendant asked if he was pleading to the gun, this court immediately stated, "[t]he crime is manslaughter in the first degree," before continuing the allocution:

THE COURT:Please indicate what it is that you did that you are now pleading guilty to.

THE DEFENDANT:For the gun.

THE COURT:Excuse me?

THE DEFENDANT:It was for the gun, right?

THE COURT:The crime is manslaughter in the first degree. What did you do?

THE DEFENDANT:I took the gun to the van.

THE COURT:What gun?

THE DEFENDANT:The .32.

THE COURT:What gun?

THE DEFENDANT:The gun that killed the young man.

Defendant's claim that the court should have engaged in further inquiry to determine whether his plea was knowing and voluntary is completely meritless. "Judges are not expected to be omniscient . . . [and] there is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel and who admits the underlying facts may nevertheless not know what he is doing." (People v Francis, 38 NY2d 150, 154 [1975]). The record is clear that this court twice advised the defendant that he was pleading to manslaughter in the first degree. Moreover, the record made by the District Attorney at the time clearly demonstrates that indeed the defendant knew and understood he was pleading to manslaughter in the first degree (PL125.20 [1]):

MR. GREENFIELD:After you brought the gun in to the van, Mr. Rosales, there came a time that it was passed to Mr. Fernandez, correct?

THE DEFENDANT:Yes.

MR. GREENFIELD:And you knew when it was being passed to Mr. Fernandez, he was going to use it to shoot at someone, correct?

THE DEFENDANT:Yes.

Penal Law § 125.20 (1) provides that "a person can be found guilty of manslaughter in the first degree when [w]ith intent to cause serious physical injury to another person he [or she] causes the death of such person or of a third person.'" (People v Owens, 251 AD2d 898, 899 [3d Dept 1998], quoting Penal Law § 125.20[1]). Furthermore, "[a] defendant may be presumed to intend the natural and probable consequences of his actions. . . . " (People v Mahoney, 6 AD3d 1104, 1104 [4th Dept 2004]). The entire record of defendant's plea allocution is replete with objective evidence that defendant brought the gun to the van knowing that it would be used by a co-conspirator to shoot someone. Simply put, there is no doubt that such admitted conduct clearly constitutes manslaughter in the first degree.

Accordingly, defendant's plea colloquy reflects that he admitted his guilt, acknowledged [*5]that he committed the acts constituting the elements of manslaughter in the first degree, stated that he understood his rights, understood the terms of the plea agreement, was not threatened or induced into pleading guilty, and had sufficiently discussed the matter with his attorney. Therefore, the record contains no evidence that defendant's plea was anything other than knowing and voluntary. (People v Branton, 35 AD3d 1035, 1036 [2006]).

iii. CPL 440.10 (2) (c)

The District Attorney's argument that defendant's motion must be summarily denied pursuant to CPL 440.10 (2) (c) because his claims are record-based and should have been raised on direct appeal is unpersuasive. CPL 440.10 (2) (c) provides as follows:

2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when: . . .

(c) 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 to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him;

While the District Attorney correctly states that issues regarding sufficiency of a plea colloquy are record-based and must be brought on direct appeal, here the underlying issue that the defendant presents is the ineffective assistance of counsel claim. In general, the avenue for pursuing ineffective assistance of counsel claims is precisely through a collateral motion under CPL 440.10, as opposed to a direct appeal, because the trial record will often be insufficient and need to be supplemented. (See People v Harris, 109 AD2d 351, 360 [2d Dept 1985]).

It is well established that "in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by [a] collateral or postconviction proceeding brought under CPL 440.10." (People v Brown, 45 NY2d 852, 853-854 [1978]; see also Cruz v Berbary, 456 F Supp 2d 410, 414 [2006], ["Denial of a CPL 440.10 motion, pursuant to 440.10 (2) (c), will not always be appropriate in the ineffective assistance context, such as when the facts supporting the instance of ineffective assistance of counsel appeared outside the record"]). Thus, a court's obligation to address the merits of an ineffective assistance claim may obviate consideration of a procedural bar. (Horton v Ercole, 557 F Supp 2d 308, 316 n 5 [2008]; see Greiner v Wells, 417 F3d 305, 318 n 14 [2d Cir. 2005]).

Here the defendant puts forth a legitimate reason why he was justified in his failure to properly raise these record-based issues on direct appeal. Defendant's application to the First Department for assigned counsel was denied because he had previously retained trial counsel, Jack Sachs. Accordingly, since defendant's claims are based, at least in part, on matters outside the record, which he was justified in not asserting through direct appeal, it is entirely appropriate for this court to entertain them.

This court also disagrees with the District Attorney's argument that defendant's motion should be denied without a hearing pursuant to CPL 440.30 (4) (b) and (d) because he failed to include an affidavit from trial counsel regarding his ineffective assistance claim. It is clear that [*6]affidavits of trial counsel are not necessarily required in support of a 440.10 motion based on ineffective assistance of counsel. Clearly, "[t]he defendant's application is adverse and hostile to his trial attorney. To require the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary." (People v Radcliffe, 298 AD2d 533, 534 [2d Dept 2002]; see also Rosa v Herbert, 277 F Supp 2d 342, 353 [2003]).

B. Waiver of Right to Appeal

The District Attorney further argues that the defendant's motion should be procedurally denied because he waived his right to appeal when he pled guilty. While "[i]t is well established that a defendant's voluntary and knowing waiver of the right to appeal is generally enforced," (Sharpley v US, 499 F Supp 2d at 210), it "is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel." (US v Hernandez, 242 F3d 113-14). "[A] waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement." (Frederick v Warden, 308 F3d 192, 195 [2d Cir. 2002]). Nevertheless, where there is a finding that the plea was voluntary and knowing, the waiver is enforceable. (See Holbdy v US, 2008 US Dist LEXIS 52441 [2008], where the court held that "[o]n collateral review . . . a court may only properly vacate a guilty plea where the petitioner has established that the plea was not "knowingly and voluntary."). Under these circumstances, "[t]o find an appeal waiver unenforceable . . . would render the plea bargaining process and the resulting agreement meaningless.'" (US v Monzon, 359 F3d 110, 119 [2d Cir. 2004], quoting US v Salcido-Contreras, 990 F2d 51, 53 [2d Cir 1993]; see Odiana v US, 499 F Supp 2d 196, 199 [2007]).

As such, this court rejects the District Attorney's position that solely because the defendant waived his right to appeal his guilty plea, his motion must be summarily denied. This court does agree, however, that having found his guilty plea to be knowing and voluntary as indicated below, defendant has indeed waived his right to appeal the validity of both his plea and sentence.

C. Post-Release Supervision

Defendant also argues that his guilty plea was not knowing and voluntary because this court did not advise him of the duration of post-release supervision at the time of his plea. The Court of Appeals recently held that where the court fails to so advise the defendant, both at his plea allocution and his sentencing, are faulty and warrants a finding that it was not entered into knowingly. (People v Boyd, 12 NY3d 290, [2009]). In so doing, the Court affirmed the First Department's holding that "[w]ithout knowledge of the period of post-release supervision, it was simply not possible for defendant herein to possess the full understanding necessary to an informed plea." (People v Boyd, 51 AD3d 325, 329 [1st Dept 2008]).

In Boyd, the Court of Appeals cites to the seminal case on this issue, People v Catu, 4 NY3d 242, 245 [2005], where it held that "a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action. . . ." (emphasis supplied). The Court further invoked its decision in People v Louree (8 NY3d 541, 545-546 [*7][2007]), where it held that when "a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent. . . ." (emphasis supplied). Thus, says the Court in Boyd, "a criminal defendant has a right to hear directly from the court its pronouncement as to what the entire sentence encompasses." (Boyd at 290).

Significantly, the Court of Appeals also reaffirmed its position in People v Sparber (10 NY3d 457 [2008]) and In re Garner v New York State Department of Correctional Servs (10 NY3d 358 [2008]), where the trial court failed to pronounce the duration of post-release supervision at sentencing. Regarding such failure, however, the Court states, "[i]n response to our decisions in Sparber and Garner, the Legislature created a statutory exception to the mandatory imposition of PRS, which was directly aimed at saving guilty pleas." (Boyd at 290). That legislation specifically carves out an exception to the mandatory imposition of post-release supervision when the court did not explicitly state such a term when pronouncing sentence" (emphasis supplied). (Id; see Penal Law § 70.85)[FN2]

In addition, Correction Law 601-d, which was enacted under Chapter 141 of the Laws of 2008, grants statutory authority to trial courts to resentence defendants to a term of post-release supervision where the court failed to pronounce the duration of post-release supervision at sentencing. In People v Hernandez (59 AD3d 180 [1st Dept 2009]), the First Department unanimously affirmed the defendant's resentencing, holding that the trial court "clearly acted under the authority granted to it by the Legislature when it enacted Correction Law 601-d" and rejected defendant's claim that his resentencing exceeded the court's authority to correct an illegal sentence. (See also People v Williams, 59 AD3d 172 [1st Dept 2009]). Both Hernandez and Williams make clear that where post-release supervision was at least mentioned when defendant entered his guilty plea but not pronounced when sentenced, trial courts retain the authority to resentence defendants to a term of post-release supervision. It follows then, that where, as here, the defendant was made aware that his sentence would include a period of post-release supervision during his plea colloquy, and was properly informed that the period would be five years when this court pronounced it at his sentencing, it is of no moment that he was not informed of the exact duration at the time of his plea.

D. Excessive Sentence

Finally, defendant asserts that his agreed upon sentence of 16.5 years imprisonment is excessive. The District Attorney urges this court to summarily deny defendant's excessive sentence claim arguing that CPL 440.10 (2) (d) precludes such a claim from being raised in a motion pursuant to CPL 440.10. While CPL 440.10 (2) (d) requires a court to deny a motion to vacate a judgment when "[t]he ground or issues raised relates solely to the validity of the sentence and not to the validity of the conviction" (emphasis supplied), here defendant has obviously raised several issues relating to the validity of his conviction. However, as indicated [*8]above, this court finds that defendant was not deprived of the effective assistance of counsel and that his plea was knowing and voluntary. As such, his waiver of appeal is enforceable.

Nevertheless, this court finds that defendant's sentence was not excessive. The defendant was indicted for murder in the second degree, a crime for which he could have been sentenced, upon conviction by a jury, to life imprisonment with a mandatory minimum period of 25 years. Counsel successfully obtained a non-life sentence, the maximum period of which is 16.5 years. The record clearly establishes that defendant was advised of this term of imprisonment and was in no way forced or coerced.

E. Conclusion

Accordingly, for the reasons stated, this court finds that, in fact, the defendant entered a voluntary, knowing and intelligent plea and that the defendant received effective assistance at all stages of the proceedings (see People v Wiggins, 89 NY2d 872 [1996]; People v Ford, 86 NY2d 397, 404 [1995]; see also Strickland v Washington, 466 US 668). This court further finds that the term of post-release supervision was properly pronounced and that his waiver of appeal is enforceable. Therefore, the defendant's motion to vacate his judgement of conviction pursuant to CPL 440.10 (1) (h) is in all respects denied.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.

Dated:July 10, 2009

E N T E R

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Richard Lee Price, J.S.C. Footnotes

Footnote 1: This court notes that while Defendant was represented by Jack Sachs at the time he entered his guilty plea, Jacob Stevens was the first attorney of record. It appears that defendant is referring to Jacob Stevens' alleged failure to provide him with relevant court documents.

Footnote 2: Penal Law § 70.85 states in pertinent part, that "[t]his section shall apply only to cases in which a determinate sentence was imposed . . . [and] required by law to include a term of post-release supervision, but the court did not explicitly state such a term when pronouncing sentence . . . the court may, notwithstanding any other provision of law but only on the consent of the district attorney, re-impose the originally imposed determinate sentence of imprisonment without any term of post-release supervision, which then shall be deemed a lawful sentence."