People v Ortiz

[*1] People v Ortiz 2017 NY Slip Op 50182(U) Decided on February 13, 2017 Criminal Court Of The City Of New York, Bronx County Kirschner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 13, 2017
Criminal Court of the City of New York, Bronx County

The People of the State of New York

against

German Ortiz, Defendant.



7X037518



Paul Brill, Esq.

Brill Legal Group, P.C.

516-206-2002

Paul Anderson

Assistant District AttorneyOffice of the Bronx District Attorney

718-838-6667
David J. Kirschner, J.

By motion dated May 19, 2016, defendant moves this court for an order to either vacate the judgment of conviction pursuant to Criminal Procedure Law § 440.10, or in the alternative, to set aside his sentence pursuant to Criminal Procedure Law § 440.20, contending that he should have been adjudicated a youthful offender. After review of the motion papers, papers on file with the court, and prior court proceedings, defendant's motion is summarily denied.

I. Background and Procedural History

On November 23, 1987, judgment was entered against the defendant under Docket Number 7X036960 in Criminal Court, Bronx County, adjudicating him a youthful offender upon his plea of guilty to unauthorized use of a vehicle, a Class A misdemeanor (Penal Law § 165.05), and sentencing him to a conditional discharge. That adjudication stemmed from his arrest on July 23, 1987, where he was charged with grand larceny in the third degree, a Class D felony (Penal Law § 155.35). No appeal was taken.

Also on November 23, 1987, judgment was entered against the defendant under Docket Number 7X037518 in Criminal Court, Bronx County, convicting him upon his plea of guilty to unauthorized use of a vehicle, a Class A misdemeanor (Penal Law § 165.05), and sentencing him [*2]to a three-year period of probation. This conviction stemmed from his arrest on July 27, 1987, where he was charged with grand larceny in the fourth degree, a Class E felony (Penal Law § 155.30). No appeal was taken.

The following year, in 1988, defendant sustained two additional arrests under Docket Numbers 8X036515 and 8X036516. While the record under Docket Number 8X036516 was sealed, the record under Docket Number 8X036515 reflects that he was charged with first-degree robbery, a class B felony (Penal Law § 160.15). On December 15, 1988, defendant pleaded guilty to disorderly conduct, which was restored to the calendar April 13, 1989, ostensibly for violating a condition of that plea. Twice thereafter, defendant failed to appear in court as directed, first on June 1, 1989 (returned on January 20, 1993), and again on March 4, 1993 (returned November 12, 1996).

Then, on December 12, 2015, judgment was entered against the defendant in Criminal Court, New York County, convicting him upon his plea of guilty to criminal possession of a weapon in the fourth degree, a Class A misdemeanor (Penal Law § 265.01), and sentencing him to a conditional discharge. This conviction stemmed from his arrest the previous day on December 11, 2015, when he was charged with criminal possession of a weapon in the fourth degree, a Class A misdemeanor (Penal Law § 265.02).

Upon attempting to obtain the court file for Docket Number 7X037518 from the Bronx County Central Clerk's Office, the People learned that it had been destroyed since such files are only maintained for a period of 25 years. On December 31, 2012, the People's trial folder was also destroyed.

Hoping that the court file for Docket Number 8X036516 would contain useful information relative to defendant's criminal history and youthful offender status, the People moved in Supreme Court (Price, J.) for an order unsealing it. Although that motion was granted, the Bronx County Central Clerk's Office notified the People that it, too, had been destroyed.

Defendant now moves to vacate his judgment and set aside his sentence under Docket 7X037518 pursuant to Penal Law §§ 440.10 and 440.20, claiming that the sentencing court erroneously failed to adjudicate him a youthful offender where he "pleaded guilty on the promise from [his] lawyer and the Court that [he] was to receive Youthful Offender adjudications on both cases at sentencing."

II. Procedural Bars

As a preliminary matter, defendant's motion must be summarily denied pursuant to CPL § 440.10 (2) (c) because his claim is record-based, and should have been raised on direct appeal. CPL § 440.10 (2) (c) provides that where adequate appellate review of the ground or issue raised upon a motion to vacate the judgment of conviction was permitted, defendant's unjustified failure to do so precludes CPL § 440.10 relief. A motion to vacate judgment, then, must be denied where "sufficient facts appear on the record of the proceedings" to have had the issue adjudicated on direct appeal, but no appellate review was sought (CPL § 440.10 [2] [c]; People v Cuadrado, 9 NY3d 362, 365 [2007] [CPL § 440.10 (2) (c) requires that such defects be raised on direct appeal or not at all]).

Regarding post-conviction attacks, it is axiomatic that a CPL § 440.10 collateral motion provides an avenue of relief unavailable on 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]). Indeed, it is often preferable that an appellate attack be based on an evidentiary [*3]exploration of a post-conviction proceeding brought under CPL § 440.10 (see 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"]).

But, as the People argue, defendant's claim that his 1987 guilty plea is invalid because the court promised him youthful offender status yet failed to impose it would have been evident on the face of the record. As such, defendant could have, and indeed should have, asserted it on a direct appeal (cf. People v Selikoff, 35 NY2d 227 [1974] [ending the practice making off the record promises to defendants]), which the defendant failed to do. Moreover, his nearly thirty-year delay in filing this motion forecloses this court from adequately reviewing it now, particularly given the court file's destruction in the interim (see People v Friedgood, 58 NY2d 462 [1983] [denying defendant's CPL § 440 motion for failure to exercise due diligence in waiting three years to file motion]). Poignantly, though, defendant failed to locate either the plea or sentencing minutes. And, perhaps more significantly, by not moving to withdraw his plea pursuant to CPL § 220.60, defendant waived this issue (see People v Lopez, 71 NY2d 662, 668 [l988] [right to challenge court's action waived by failing to move to withdraw his plea or vacate judgment]). The fact that defendant was in a position to have previously asserted this claim, but neglected to, does not entitle to do so now.

Defendant's motion is also denied because he failed to allege sufficient issues of fact. Generally, a judgment of conviction is presumed valid, and a defendant moving to vacate his conviction bears the "burden of coming forward with sufficient allegations to create an issue of fact" (People v Session, 34 NY2d 254, 255-256 [1974]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]; see CPL § 440.30 [4] [b], [d] [i], [ii]). CPL § 440.30 (4) provides that a court may, upon considering the merits of such a motion, deny it without a hearing if the motion is based upon essential facts without sworn allegations substantiating or tending to substantiate them (see CPL § 440.30 [4] [b]); an allegation of fact essential to support the motion is either contradicted by a court record or other official document; or, an allegation of fact made solely by the defendant is unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true (see CPL § 440.30 [4] [d] [i], [ii]).

Here, the People maintain that defendant's claim should be denied because his moving papers do not contain sufficient allegations tending to substantiate them (see CPL § 440.40 [4] [b], [d]). This court agrees. Absent any evidence to substantiate defendant's claim, he is abjectly unable to satisfy this burden. Defendant neither provided an affidavit from his counsel at the time he entered guilty pleas on both the 1987 and 1988 cases, nor delineated his efforts to do so. Such failure constrains the inescapable conclusion that the allegations are insufficient (see People v Morales, 58 NY2d 1008, 1009 [1983] [denial of motion to vacate judgment of conviction proper based on defendant's failure to submit an affidavit from the attorney who represented him at plea and sentence, or offer an explanation of such failure]).

Finally, CPL § 440.30 (1) (b) (ii) (B) provides that a court shall deny defendant's motion to vacate the judgment of conviction where it is brought more than five years from the date of such judgment unless the defendant demonstrates "that the facts upon which the motion is predicated were unknown to the defendant or his or her attorney and could not have been ascertained by the exercise of due diligence prior to the expiration of the statute of limitations" (CPL 440.30 [1] [b] [ii] [B]). It strains credulity that at the time judgment was entered, neither [*4]he nor counsel were aware he had not been adjudicated a youthful offender. As such, this court is hard-pressed to accept that it was unknown. But as already noted, the more profound problem is that now, after nearly thirty years and the destruction of pertinent court records, did the defendant elect to assert this claim. This alone warrants denial.

III. Youthful Offender Adjudication

CPL § 440.10 authorizes a court to vacate a judgment of conviction was unconstitutionally obtained. Moreover, CPL § 440.20 (1) permits a court to set aside a sentence only where that sentence was "unauthorized, illegally imposed or otherwise invalid as a matter of law." Separate and apart from sentencing-related clerical mistakes, which courts have inherent power to correct, "a court cannot, in the guise of correcting an error, change or amend a sentence which is not defective" (People v Minaya, 52 NY2d 360, 364 [1981]). Here, defendant's sentence was lawful, and he does not argue otherwise. Thus, the only available avenue upon which this court could grant the relief defendant seeks is through CPL § 440.10. But to succeed on this basis, a defendant would need to establish that the judgment of conviction was unconstitutional, which he has neither asserted nor demonstrated.

In fact, defendant predicates his 440 application on the tenuous claim that he was entitled to youthful offender adjudication on Docket 7X037518 merely because he previously received mandatory youthful offender adjudication on Docket 7X036960. CPL § 720.20 (1) (b) provides that where an eligible youth has neither been convicted of a crime nor previously been adjudicated a youthful offender, a court must adjudicate him as such, which the sentencing court did on 7X036960. Defendant argues that as a result, he was, as a matter of right, entitled to youthful offender adjudication on 7X037518 since judgment on that docket was entered the same day.

In support, defendant relies on CPL § 720.20 (2), which provides that where an eligible youth is convicted of two or more crimes . . . contained in two or more accusatory instruments consolidated for the purposes of trial, a sentencing court "must not find him a youthful offender with respect to any such conviction unless it finds him a youthful offender with respect to all such convictions (CPL 720.20 [2]). Such reliance is misplaced. While judgment was entered on both dockets to unauthorized use of a vehicle, each stemmed from different crimes, July 23, 1987 (7X036960), and July 27, 1987 (7X037518). And, such crimes were contained in different accusatory instruments. There is, however, no indication those instruments had been consolidated for the purposes of trial. Accordingly, defendant was certainly not entitled to youthful offender adjudication on docket 7X037518. Youthful offender adjudication, then, was purely discretionary.

It is well-recognized that youthful offender adjudication rests within the sound discretion of the court, and depends upon the facts and circumstances of each particular case (People v Rudolph, 21 NY3d 497, 500 [2013]; People v Rosati, 39 AD2d 592, 593 [2d Dept 1972]). It is, of course, entirely unclear whether the sentencing court considered adjudicating defendant a youthful offender on docket 7X037518 but declined to do so, or whether not imposing it was an oversight. Regardless, given that the imposed sentence was both authorized and lawful, it cannot be later disturbed by the motion court (Cf. People v Anthony C., 25 NY3d 937 [1st Dept 2015] ["The court properly exercised its discretion in denying defendant youthful offender treatment"]).

In any event, where a defendant moves for CPL 440 relief more than two years after the [*5]court declined impose youthful offender adjudication after failing to assert such claim on direct appeal, vacatur of the judgment of conviction and subsequent youthful offender adjudicated was improper (People v Ferguson, 119 AD2d 338 [1st Dept 1986]). In reversing Ferguson, the Appellate Division noted that CPL § 440.20 did not give court power to vacate a sentence that was neither unauthorized, illegally imposed, nor otherwise invalid as a matter of law. The court further noted that judgment could not be vacated under CPL § 440.10 because defendant's contention that the sentencing court failed to consider youthful offender treatment was based on facts contained in record, and accordingly, could have been reviewed on direct appeal.

Defendant's motion for an order vacating the judgment of conviction pursuant to Criminal Procedure Law § 440.10, or in the alternative, setting aside his sentence pursuant to Criminal Procedure Law § 440.20 is denied in its entirety.

This constitutes the decision and order of the court.

Dated: February 13, 2017

E N T E R

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David J. Kirschner, J.C.C.