People v Rodriguez

[*1] People v Rodriguez 2012 NY Slip Op 51744(U) Decided on July 9, 2012 Supreme Court, Kings County Murphy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2012
Supreme Court, Kings County

The People of the State of New York

against

Evaristo Rodriguez



11465/07

Martin P. Murphy, J.

Defendant was convicted by guilty plea of attempted burglary in the second degree and now moves, pro se, to vacate his judgment of conviction. Defendant contends that he was denied the effective assistance of counsel by his original attorney's failure to: (1) facilitate his testimony before the grand jury; (2) interview alibi witnesses and have them testify before the grand jury; and (3) fully explain to defendant why he should accept the initial plea offer. In addition, defendant claims that : (1) he was denied his right to testify before the grand jury; (2) the waiver of indictment pursuant to CPL 195.20 was invalid; (3) he pleaded guilty to an illegal charge that was not contained in the felony complaint or indictment; (4) his plea allocution was insufficient and reflects only that he committed criminal trespass; (5) the court improperly imposed an additional year on his sentence without affording him the opportunity to withdraw his plea ; and (6) appellate counsel was ineffective.

History of Case

On November 16, 2007, defendant was observed by an eyewitness, who lived in an apartment building located at 335 18th Street in Kings County, to enter the apartment, located directly across the hall and occupied by the complainant, by breaking the door lock. A short time later, the witness saw the defendant leave the apartment carrying a white shopping bag. The witness then called the police and provided a description of defendant. After the police arrived, the witness accompanied the officer to a park nearby and there he identified defendant as the man he had seen entering his neighbor's apartment. Defendant had in his possession the earlier mentioned white shopping bag as well as a screwdriver. Inside the shopping bag was an X-box video game console that was later identified by the complainant as belonging to him and worth more that four hundred ($400.00) dollars.

For these acts defendant was charged with burglary in the second degree; burglary in the third degree; possession of burglar's tools; criminal trespass in the second degree; criminal mischief in the fourth degree and petit larceny.

On November 18, 2007, defendant was arraigned in criminal court on the felony complaint and his case was thereafter adjourned to November 21, 2007. On December 4, 2007, the indictment was filed and defendant was arraigned on that instrument on December 20, 2007. On February 4, 2008, defendant's attorney was relieved and on February 8, 2008, new counsel [*2]filed a motion to dismiss the indictment on the grounds that defendant had been denied his right to testify before the grand jury pursuant to CPL 190.50 and that prior counsel had been ineffective. On April 9, 2008, this court found the evidence before the grand jury to be sufficient and on June 16, 2008, denied defendant's motion to dismiss the indictment pursuant to CPL 190.50.

On June 16, 2008, defendant pleaded guilty to attempted burglary in the second degree with the promised sentence of four years imprisonment and five years post-release supervision. As part of his plea allocution, defendant admitted that he knowingly entered the dwelling and remained unlawfully with the intent to commit a crime; that he was satisfied with his present attorney's performance; and that he understood the rights he was giving up as a result of his guilty plea. Defendant was also adjudicated to be a second felony offender and waived his right to appeal.

At his sentencing held on July 3, 2008, defendant's predicate felony status was corrected to reflect that he was actually a second violent felony offender. The court explained that as a result of defendant's criminal history, the earlier promised four year sentence was no longer legally permissible and that his prison sentence would have to be increased to a minimum term of five years' imprisonment along with a five year period of post-release supervision. After declining to controvert the adjustment to his predicate status, defendant indicated that he understood what was going on and accepted the change in the length of his determinate sentence without objection.

On May 11, 2010, defendant's judgment of conviction was affirmed by the Appellate Division, Second Department which granted appellate counsel leave to withdraw because it agreed that "there were no non-frivolous issues which could be raised on appeal".People v Rodriguez, 73 AD3d 953 [2d Dept 2010]. The Court further held that defendant, in his pro se supplemental brief, "has not, nor could he have, raised any non-frivolous issues"(id.).

Procedural Bars

CPL 440.10(2)(a) mandates that a court deny a motion to vacate judgment when "[t]he ground or issues raised upon the motion was previously determined on the merits upon an appeal from the judgment". In this instance, defendant has raised the same issues that he submitted to the Appellate Division in his pro se supplemental brief and those that are based on the record are subject to this mandatory bar. Only the ineffective assistance of counsel claims are exempt.

In affirming the judgment of conviction, appellate counsel's leave to withdraw was granted because the Court was satisfied that counsel had made the requisite diligent and conscientious examination of the record and was in the position to determine that there were no non-frivolous issues to raise on appeal . See Anders v California, 386 U.S. 738, 744 [1967]; People v Stokes, 95 NY2d 633, 637 [2001]; In re Giovanni, 89 AD3d 252, 255 [2nd Dept., 2011]). The Court, guided by counsel's brief, conducted its own independent review of the record and concluded that counsel's assessment of the issues was correct .People v Rodriguez, supra; also see People v Stokes, supra. Appointed counsel was therefore not required to press "wholly frivolous arguments" because the appeal lacked any basis in law or fact. See In re Giovanni, supra. The Court was equally direct in assessing defendant's pro se appeal when it found that all of his record-based claims were frivolous. Thus, because defendant was unable to present any issues in his appeal that were arguable on the merits, consideration of those same [*3]issues before this court is statutorily barred. CPL 440.10[2][a]. To the extent that defendant claims that his sentence was illegal, such claim was also determined on the merits on appeal and is therefore barred from consideration before this court. CPL 440.20[2].

Defendant's contention that counsel was ineffective for failing to investigate and present certain alleged alibi witnesses to the grand jury is also summarily rejected. CPL 440.30(4)(b) permits a court to deny a motion without a hearing if it is "based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts". Absent any information about the purported alibi witnesses and without their sworn affidavits, defendant has failed to provide the sworn allegations of fact necessary to support his claim.

That same statutory provision provides a basis for rejecting defendant's final claim of ineffectiveness arising from counsel's alleged failure to adequately advise him about his initial plea offer. Aside from his own self-serving statement, defendant fails to provide sufficient sworn allegations in support of this allegation. CPL 440.30[4][b]. Most notably, defendant never clearly states that he would not have taken the plea offer had he been better advised.

To the extent that defendant asserts that he was denied the effective assistance of appellate counsel, such a claim is improperly raised in this motion. See People v Bachert, 69 NY2d 593, 595-596 [1987].

Inadequacy of Counsel

A defendant in a criminal proceeding is constitutionally entitled to effective assistance of counsel. Strickland v Washington, 466 U.S. 668 [1984]; People v Linares, 2 NY3d 507 [2004]; also see U.S. Const., 6th Amend.; NY Const., art. 1, sect 6. Under the federal standard, criminal defendants have a Sixth Amendment right to "reasonably effective" legal assistance. Strickland v Washington, supra. and must rebut a strong presumption of competency by showing that counsel's conduct was outside the "wide range of professionally competent assistance" Strickland v Washington, Id.. and "fell below an objective standard of reasonableness". Strickland v Washington, Id. Defendant must also "affirmatively prove prejudice" by showing that,but for counsel's errors, the outcome of the proceeding would have been different. Strickland v Washington, Id.

In the context of a guilty plea, a defendant must show by a reasonable probability that, but for counsel's advice, he would not have accepted the guilty plea and instead would have gone to trial. Hill v Lockhart, 474 US 52 [1985]). A reasonable probability is a " probability sufficient to undermine the outcome. Hill v Lockhart, Id.. Thus, to obtain relief , a defendant "must convince the court that a decision to reject the plea bargain would have been rational under the circumstances". Padilla v Kentucky, __ U.S. __, 130 S. Ct. 1473 [2010]. Finally, "[t]he likelihood of a different result must be substantial, not just conceivable". Harrington v Richter, __ U.S.__, 131 S. Ct. 770 [2011].

In New York, the constitutional framework is violated when "defendant's counsel fails to meet a minimum standard of effectiveness, and defendant suffers prejudice from that failure". People v Turner, 5 NY3d 476 [2005]; People v Baldi, 54 NY2d 137 [1981]. In order to meet this standard, defendant "must overcome the strong presumption" that he was represented competently. People v Ivanitsky, 81 AD3d 976 [2nd Dept., 2011]; People v Myers, 220 AD2d 461 [2nd Dept.,1995]. "So long as the evidence, the law, and the circumstances of a particular case, [*4]viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation the constitutional requirement will have been met ". People v Baldi, supra. "This protection does not guarantee a perfect trial, but assures the defendant a fair trial" People v Flores, 84 NY2d 184 [1994]. Moreover, counsel's performance must not be second-guessed with the benefit and clarity of hindsight. People v Satterfield, 66 NY2d 796 [1985]) and the "reviewing court must avoid confusing true ineffectiveness with mere losing tactics ". People v Baldi, supra. Rather, "it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanation" for counsel's conduct.People v Rivera, 71 NY2d 705 [1988]. As regards a plea of guilty, a defendant receives meaningful representation when he obtains "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel ". People v Ford, 86 NY2d 397 [1995]; People v Hawkins, 942 NYS2d 300 [4th Dept., 2012]; People v Caruso, 88 AD3d 809 [2nd Dept., 2011].

While the deficiency prong under our State law is identical to that found in Strickland, the prejudice prong in New York is "somewhat more favorable to defendants". People v Turner, supra. A defendant need not strictly adhere to the "but for" prejudice prong of Strickland to show that he was prejudiced by counsel's performance. Strickland v Washington, supra. Rather, "the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case". People v Benevento, supra. The "court must examine whether counsel's acts or omissions prejudiced the defense or defendant's right to a fair trial'" People v Benevento, Id., quoting People v Hobot, 84 NY2d 1021[1995]. Accordingly, a defendant's showing of prejudice is "a significant but not indispensable element in assessing meaningful representation". People v Stultz, 2 NY3d 277 [2004].

Each of defendant's three allegations of trial counsel's ineffectiveness falls far short of the high threshold described above. With regard to defendant's claim that because of counsel's decision not to place him in the grand jury, he was denied his statutory right to testify before the grand jury, it is well established that "the failure of defense counsel to facilitate defendant's testimony before the grand jury does not, per se, amount to ineffective assistance of counsel". People v Simmons, 10 NY3d 946 [2008]; see People v Wiggins, 89 NY2d 872 [1996]; People v Sturgis, 199 AD2d 549 [2nd Dept., 1993] lv. den.84 NY2d 833 [1994]. This flexible approach "strongly supports the conclusion that — unlike certain fundamental decisions as to whether to testify at trial, which are reserved to the defendant — with respect to strategic and tactical decisions' like testifying before the grand jury, defendants represented by counsel are deemed to repose decision-making authority to their lawyers'". People v Lasher, 74 AD3d 1474 [3d Dept., 2010], quoting People v Colon,90 NY2d 824 [1997]. Finally, in light of the strong evidence of defendant's guilt, he is unable to establish that he was prejudiced by his attorney's performance and cannot credibly assert that "had he testified in the Grand Jury, the outcome would have been different". People v Simmons, supra.

Defendant's claim that counsel failed to investigate alleged alibi witnesses and present them to the grand jury is without merit even if true. A court should always keep in mind that "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments". Strickland v Washington, supra. Accordingly, "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue [*5]these investigations may not later be challenged as unreasonable" . In this instance, a witness saw defendant break into the apartment and leave with a white shopping bag. A short time later, in the company of the police, the witness identified defendant in a nearby park with the same bag that contained identifiable property taken from the apartment. Considering the circumstances under which defendant was apprehended, a decision by counsel not to investigate or present alleged alibi witnesses to the grand jury would have been both reasonable and prudent.

Defendant's remaining claim also lacks merit. While counsel informed him of the initial plea offer in criminal court, defendant contends that counsel was nevertheless ineffective for not adequately discussing the advisability of accepting it. Sh "Meaningful representation by counsel includes the conveyance of accurate information regarding plea negotiations, including relaying all plea offers made by the prosecution" (People v Rogers, 8 AD3d 888, 890 [3d Dept 2004]). If defendant can establish that counsel failed to meet this component of effective representation it is his additional burden to show that he would have been willing to accept the plea offer (People v Fernandez, 5 NY3d 813, 814 [2005]; People v Goldberg, 33 AD3d 1018, 1019 [2d Dept 2010]).

In this instance, defendant failed to establish both that counsel was deficient and that he was not willing to accept the plea offer. In a letter, dated November 26, 2007, submitted by defendant to support his position that counsel was unresponsive to him, he unwittingly makes the case for counsel's competency. He states, "I am writing you this letter because defendant would like to know why did you believe the plea offer was best for me". This statement reflects that counsel conveyed the plea offer as required and advised defendant that it was in his best interest to accept it. By doing so, counsel fulfilled his professional obligations and met more than the minimal standard of constitutional competency. People v Rosenthal, 304 AD2d 418 [1st Dept., 2003] [advising defendant to simply accept misdemeanor plea reflects effective representation].

Accordingly, defendant's motion is Denied in its entirety.

This decision shall constitute the order of the court.

Dated: Brooklyn, New York

July 9, 2012

_________________________

Martin P. Murphy, J.S.C.