People v Paulino

[*1] People v Paulino 2012 NY Slip Op 51942(U) Decided on October 12, 2012 Supreme Court, New York County Weinberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 12, 2012
Supreme Court, New York County

The People of the State of New York

against

Jose Paulino, Defendant



SCI 6906/98



For the People: ADA Alexander Shapiro, Office of the Special Narcotics Prosecutor, 80 Centre St. New York, NY 10013, 212 815 0192.

Defendant, pro se.

Richard M. Weinberg, J.

Defendant was originally charged with Criminal Sale of a Controlled Substance in the Second Degree (PL § 220.41[1]), an A-II felony. On August 2, 1998, after stating that he was satisfied with the legal representation that he had received, and after waiving his right to prosecution by indictment and agreeing to enter his plea pursuant to a superior court information, defendant pled guilty to the reduced charge of Criminal Sale of a Controlled Substance in the Fifth Degree (PL § 220.31), a class D felony. He received a sentence of two and a half to five years in state prison. Under the original charge, he had face a maximum indeterminate prison sentence of 12 and a half years to life. Defendant was fully allocuted at the time of the plea, admitted his guilt and identified the type of drug that he had sold on the evening of June 18, 1998 at 515 W 168th Street. Defendant was also arraigned on a predicate statement and admitted that he was the person named in the statement. He disputed neither the charge nor the constitutionality of the prior conviction. No appeal was ever taken from this judgment of conviction.

Defendant now moves to vacate this 1998 judgment on the ground that his right to due process and equal Protection were violated because he was the victim of racial profiling. He further asserts that he received ineffective assistance of counsel. Defendant now stands convicted of a Federal Drug Offense and faces enhanced punishment because of his criminal record. Defendant claims his counsel was ineffective because his counsel failed to advise him that if he were convicted in the future of a federal drug crime he would face enhanced punishment as a result of his guilty plea. [*2]

Defendant now claims for the first time and some fourteen years after the eventthat he was arrested and prosecuted solely as a result of a "racial profile lottery". Defendant asserts that he and his three co-defendants were randomly chosen by the police to be prosecuted for the drug sales in this case. This claim, together with its implicit assertion of actual innocence, is unsupported by any evidence other than defendant's bald assertion and is clearly contrary to defendant's detailed statements made in Court at the time of his plea. It is also clearly contrary to the plea allocutions of two of the co-defendants which were made at the time of defendant's plea. Defendant's plea admissions are also consistent with the People's allegations that defendant was involved in a face to face drug sale involving an undercover police officer who subsequently identified the defendant. Defendant's claim of racial profiling is contradicted by the Court record, is made solely by defendant, is unsupported by any other evidence or affidavit, and, under the circumstances of this case, there is no reasonable possibility that such allegation is true. Accordingly, this branch of defendant's motion is denied pursuant to CPL § 440.30 (4) (d).

Additionally, defendant's claim of racial profiling could have been raised on the record at the trial level and an appeal could have been taken. Neither was done. Accordingly, defendant is precluded from raising this issue for the first time on this motion. CPL § 440.10 (3) (a); People v Cuadrado, 9 NY3d 362 (2007).

Defendant further alleges that he received ineffective assistance of counsel because his retained counsel failed to advise him that his conviction in this case would serve to enhance his punishment under the Federal Sentencing Guidelines if he were ever to be convicted for a Federal drug felony. Even accepting this allegation as true, counsel's failure to so advise does not establish ineffective assistance. Failure to explain to a defendant the potential future sentence-enhancement consequences of pleading guilty to a felony does not implicate any constitutional right. People v Watkins, 244 AD2d 269 (1st Dept, 1997), lv denied 92 NY2d 863 (1998); People v Silvers, 163 AD2d 71 (1st Dept, 1990), lv denied 76 NY2d 865 (1990). Additionally, the record shows that defendant was aware that his status as a predicate felon exposed him to enhanced punishment in this case and defendant was present when the Court explained to his co-defendants that their pleas would expose them to enhanced punishment for any future felony convictions.

The record establishes that defense counsel negotiated a highly favorable plea bargain for the defendant and that defendant was thoroughly allocuted on the record before entering his guilty plea. Any assertion by defendant that he would have rejected this plea bargain and risked a potential twelve and a half years to life prison sentence if he had been advised by counsel of the predicate consequences on future crimes is simply not credible. See People v Silvers, supra.

Defendant has established neither that counsel's performance was deficient nor that he was prejudiced by counsel's performance. See Strickland v Washington, 466 US 668 (1984). Accordingly, this branch of defendant's motion is also denied.

This constitutes the decision and order of the Court.

Dated:___________________________

New York, New YorkRichard M. Weinberg

JSC