People v Jimenez
Annotate this CaseDecided on April 4, 2017
Supreme Court, New York County
The People of the State of New York
against
Benjamin Jimenez, Defendant.
3980/12 3277/13
Defendant appearing pro se
Appearing on behalf of the People: Jeremy Pfetsch, Assistant District Attorney1 Hogan Place New York, NY 10013 (212) 335-9545
Jill Konviser, J.
On January 8, 2012, the defendant and a co-conspirator slashed two people in the face and head, resulting in permanent disfigurement to both victims. Some two months later on March 17, 2012, the defendant again slashed and viciously beat two additional individuals, resulting in permanent disfigurement to those victims as well. By Indictment Number 3980/12, the defendant was charged with Assault in the First Degree and related offenses for the January slashings and by Indictment Number 3277/13, the defendant was charged with Gang Assault in the First Degree and related offenses for the March slashings. On September 12, 2013, following extensive plea negotiations, the defendant entered pleas of guilty in both cases, and on July 16, 2014, was sentenced to concurrent determinate terms of imprisonment of twelve years to be followed by five years of post-release supervision. The sentences were ordered nunc pro tunc to January 8, 2013, at the defendant's request. Additionally, the sentences were ordered to [*2]run concurrently with the defendant's federal sentence for a Hobbs Act violation.[FN1]
On or about February 25, 2016, the defendant filed a pro se motion to vacate the judgments of conviction pursuant to Criminal Procedure Law Section 440.10. The defendant's principal contention is that the pleas he entered were involuntary. The defendant further claims that retained counsel provided ineffective assistance in connection with those pleas. The People filed an affirmation in opposition to the defendant's motion. The defendant filed a reply on or about January 26, 2017. For the reasons that follow, the defendant's motion is denied in its entirety without a hearing.
Involuntary Plea Claim
The defendant advances several claims with respect to the guilty pleas he entered in these cases, concluding that the pleas were rendered involuntary. The defendant's chief complaint appears to be an alleged violation of his Boykin rights. The defendant's contention in this regard is, however, born of confusion, as he conflates the sentencing proceeding with the plea allocution.[FN2] Additionally, the defendant appears to claim that he was under the influence of assorted substances at the time of the pleas — a claim belied by his appearance, demeanor, and speech throughout the Court's thorough plea allocution. In any event, the defendant's pleas were freely, knowingly, and voluntarily entered, and, accordingly, the motion to vacate the judgments of conviction on the ground of the involuntariness of the pleas is denied.[FN3]
It is well-settled that a plea is freely, knowingly and voluntarily entered when the defendant has a "full understanding of what the plea connotes and of its consequences," People v. Harris, 61 NY2d 9, 19 (1983) (internal citations omitted), and when nothing in the allocution casts significant doubt on the defendant's guilt, see People v. Lopez, 71 NY2d 662 (1988). In the instant matter, the transcript irrefutably demonstrates that the defendant was fully aware of the consequences of his pleas, and nothing in the transcript casts any doubt on his guilt.
The defendant informed the Court during jury selection in the 2012 case, that he wished to enter guilty pleas to both indictments. The Court then provided the defendant an opportunity to confer with counsel privately. Upon returning to the courtroom, the defendant confirmed that he wanted to dispose of these matters by entering guilty pleas in exchange for the highly favorable disposition offered by the People. The Court agreed to the disposition and conducted a thorough allocution of the defendant.
To begin, the Court ensured that the defendant's decision to enter a plea of guilty was knowingly made and that he was fully aware of the parameters of the pleas.
The Court: If, at any time, you do not understand something stop me and I'll explain it. If you want to talk to your lawyer at any time you can certainly do that. I know that you have been actively involved in discussions with him throughout this case, and you are interested in the outcome, and whatever you want to talk to him about you can do at any moment . . .
The Court: Your lawyer is telling me that you want to plead guilty to both of the indictments that are pending before me . . . under 3980 you would be pleading guilty to . . . two counts of assault in the first degree . . . [a]nd on the other indictment . . . you would be pleading guilty to gang assault in the first degree . . . and the agreement is that you would receive 12 years on [each] . . . [t]hose sentences would run concurrently, or at the same time. Additionally, it would run concurrent to whatever you got on your federal case that is pending for sentence.
Defense counsel interrupted, urging the Court to nunc pro tunc the sentences to the date the defendant had been arrested on the unrelated federal matter. The Court agreed, informing the defendant that he would receive credit towards the sentences from the time of his incarceration on the federal matter — January 8, 2013. The Court then confirmed that the defendant understood the parameters of the pleas and the agreed-upon sentence.
The Court: [D]o you understand that?
The defendant: Yes.
The Court: This is what you want to do?
The defendant: Yes.
Next, the Court, recognizing that it had neglected to explain that the sentences included post-release supervision, clarified the sentencing promise, including a thorough explanation of the attendant post-release supervision.
The Court: What I should have said was you are getting 12 years on each of these cases to run concurrently with each other, and concurrently with the federal matter. What I neglected to say is that you will also receive five years post release supervision on each of these as a part of the sentence. That is a part of it . . . do you understand that?
The defendant: Yes.
The Court: So it's 12 years on each with five years post release supervision on each and that's still what you want to do, right?
The defendant: Yes.
The Court: You went over that with your lawyers and you understand all the parameters, and you understand everything that has gone on in this case, correct?
The defendant: Yes.
Then, the Court ascertained that the defendant understood the legal consequences associated with his guilty pleas.
The Court: You know that a guilty plea has the same [effect] as a conviction after trial? The difference is you know precisely what you are getting. You are getting these sentences to run concurrently, or at the same time, and you are getting it to run concurrent to your federal matters, right?
The defendant: Yes.
The Court: But in exchange for those benefits you have to tell me precisely what you did in these cases . . . do you understand that?
The defendant: Yes, I do.
The Court: Do you understand that with respect to indictment 3980 of 201[2] you are pleading to two felonies, two violent B felonies, do you understand that?
The defendant: Yes.
The Court: And do you understand that with respect to 3277 of 2013 you are pleading guilty to one class B violent felony offense . . . do you understand that?
The defendant: Yes.
The Court: That means if you were to get convicted of a crime in the future, not counting the federal matter that we have been talking about, another crime in the future, and I hope that doesn't happen, but if it did, do you understand these convictions would serve to enhance any future sentences that you might get? Do you understand that?
The defendant: Yes, I do.
The defendant's answers to the Court's questions unequivocally demonstrate that he understood the Court's detailed explanation of the parameters of the plea and the sentences to be imposed. The Court next engaged in a thorough allocution of the defendant with regard to the rights he was giving up as a result of entering the pleas.
The Court: Do you understand that by pleading guilty you do give up certain constitutional rights? For example, with respect to each of those cases, as you know, you have a constitutional right to a trial by a jury, and you have a constitutional right in each of those cases to cross examine the People's witnesses. You have a constitutional right in each of those cases to remain silent and say nothing. You have a constitutional right to assert any defenses that you may have in either of those cases, but by pleading guilty you give all of that up . . . do you understand?
The defendant: Yes.
The Court: That is what you want to do, correct?
The defendant: Yes, I do.
Again, the defendant's unqualified responses clearly demonstrate that he fully understood the legal consequences of the pleas. The Court then ensured the defendant was entering the pleas voluntarily.
The Court: Has anyone forced or threatened you into pleading guilty?
The defendant: No.
The Court: Are you pleading guilty voluntarily?
The defendant: Yes.
The Court: Are you pleading guilty because you are in fact guilty?
The defendant: Yes.
The Court: And are you pleading guilty because you believe that this is the best way to resolve these cases? Is that fair to say?
The defendant: Yes, it is.
The Court: Aside from the promise that I just laid out for you, has anyone made you any promise to get you to plead guilty?
The defendant: No.
Quite simply, the defendant's responses to the Court's questions made plain that the defendant was entering the pleas voluntarily and that he had not been subjected to any pressure or coercion. So, too, the defendant's replies underscore his desire to dispose of these matters with the favorable disposition offered by the People.
Next, the Court ascertained that the defendant had had a full opportunity to discuss the decision to enter the pleas with his attorney, and that he was satisfied with counsel's performance.
The Court: I know the answer to the next question, but I'm going to ask it anyway. Have you had an opportunity to speak about these cases and these pleas with your attorney?
The defendant: Yes.
The Court: And have your attorneys, I should say, answered all of your questions satisfactorily?
The defendant: Yes.
The Court: You are satisfied with the services provided by your attorneys?
The defendant: Yes.
The Court: They have answered all of your questions?
The defendant: Yes.
The Court: You understand the strengths and weaknesses of your case . . . what the People's evidence was going to be . . . you understand what you were facing . . . and you want this deal having had those conversations with your lawyers . . . is that correct?
The defendant: Yes.
The defendant's responses demonstrate that he was entering the plea with the full benefit of counsel's advice, and that he was satisfied with the services rendered by counsel.
Finally, the Court ensured that the defendant understood that the Court's sentencing promise was based on his anticipated cooperation with the Department of Probation in preparing a pre-sentence report.
The Court: Now, between now and the date of sentence I am agreeing with your lawyer to give you a lengthy date to deal with your federal matter, but at some point between now and the date of sentence you will be interviewed by the Department of Probation. You need to go, you need to appear, and you need to answer all of their questions truthfully. If you don't do that, if you told them something other than what you told me here, understand that I would not be bound by my promise of 12 years with 5 years post release supervision on each of these cases to run concurrently with each other, and with the federal matter. I would not let you have your plea back, and I could and likely would give you 25 years with 5 years post release supervision on each of them to run consecutively, not even concurrent with the federal matter. Do you understand how important it is to speak to Probation and answer their questions truthfully?
The defendant: Yes.[FN4]
Thus, the excerpts of the transcript irrefutably demonstrate that when he entered the pleas, the defendant had a full understanding of the consequences of those pleas.
Moreover, the transcript makes clear that the defendant unequivocally admitted his guilt [*3]to the crimes for which he was entering the pleas. Indeed, the court engaged in a precise factual allocution of the defendant.
The Court: I want to draw your attention, first, under indictment number 3980 . . . of 12, on or about January 8th of 2012, in New York County, did you with intent to cause serious physical injury to another person, did you cause such injury to that person by means of a dangerous instrument?
The defendant: Yes.
The Court: You had a knife?
The defendant: Yes.
The Court: Did you cut this guy Randy Cruz in the face and head?
The defendant: Yes.
The Court: And now I want to draw your attention to the same day, all right, January 8th of 2012 in New York County . . . [d]id you also with intent to cause serious physical injury to another person, cause such injury to a different person, a guy named Mr. Pena by means of a dangerous instrument? Did you do that?
The defendant: Yes.
The Court: And that was by means of a knife also?
The defendant: Yes.
The Court: Was it the same knife?
The defendant: No, no.
The Court: Two knives?
The defendant: Yes.
The Court: And with respect to Mr. Pena, you cut him, also, in the head and face?
The defendant: Yes.
The Court: Now I'm going to draw your attention to the other indictment number, 3277 of 2013. I want to ask you if on March 17th of 2012, also in New York County, with intent to cause serious physical injury to another person, did you along with a bunch of your friends, or other people you know who were actually with you, did you all cause serious physical injury to another person?
The defendant: Yes.
The Court: And that you used a knife in that case, too?
The defendant: Yes.
The Court: And where did you cut the victim in that case? Where, physically, on the body?
The defendant: I believe it was on the head.
The Court: The head. And were you with, at the time - the People who were aiding you at that time, who were actually present, were individuals who were named Angelo Burgos, and a guy named Emil Azar?
The defendant: Yes.
The Court: You were with those guys, and they did this with you, correct?
The defendant: Yes.
The defendant's unqualified responses make plain that he was admitting his guilt to the offenses charged.
The foregoing makes abundantly clear that the defendant was fully informed of his Boykin rights and unequivocally waived those rights. Boykin v. Alabama, 395 U.S. 238 (1969). [*4]Indeed, the extensive plea allocution irrefutably demonstrates that the defendant's pleas were freely, knowingly, and voluntarily entered. Moreover, his responses to the Court's pointed inquiry underscore the defendant's reasoned and well-informed choice to forgo trial in favor of a particularly advantageous disposition of the multiple violent felony offenses then pending against him.
To the extent the defendant now claims that at the time of the pleas he was "heavily under the influence of drugs and alcohol," having "taken five valiums," "smoke[d] three marijuana blunts and drank a quart of home-made 'hooch'," the defendant's appropriate, responsive, and unequivocal answers to the Court's thorough and particularized questioning refute any such contention.[FN5] Moreover, this Court, during the extensive plea allocution, observed the defendant's appearance, demeanor, and speech, and concluded that the defendant was entering the pleas voluntarily. See People v. Sass, 49 AD3d 287 (1st Dept. 2008); People v. Wheeler, 289 AD2d 10 (1st Dept. 2001); People v. Murray, 257 AD2d 438 (1st Dept. 1999). Accordingly, the defendant's motion to vacate the judgments of conviction on the ground of involuntary pleas is denied.
Ineffective Assistance of Counsel Claim
Additionally, the defendant moves to vacate the judgments of conviction as, he claims, retained counsel provided him with ineffective assistance. Specifically, the defendant contends that defense counsel was suspended from the practice of law at the time of his representation, and that disciplinary proceedings against counsel interfered with his ability to represent the defendant. The defendant further contends that defense counsel failed to defend him properly and neglected to explain the possible penalties he faced for the charged crimes. The defendant's complaints are without merit.[FN6]
As a preliminary matter, the defendant's assertion that defense counsel was a suspended attorney at the time of his representation is incorrect — he was not. Counsel was suspended by decision of the Appellate Division, First Department issued on December 9, 2014, with the suspension to take effect on January 8, 2015 — some fifteen months after the defendant entered the pleas here. In any event, even representation by a lawyer who is temporarily suspended from the practice of law does not constitute per se ineffective assistance of counsel. See People v. Kieser, 79 NY2d 936 (1992). Indeed, under the facts and circumstances present here, the defendant received the meaningful representation to which he was entitled.
The right to effective assistance of counsel is guaranteed by both the Federal and State Constitutions. See U.S. Const., Amend. VI; N.Y.S. Const., Art. I, § 6. To prevail on a claim of ineffective assistance of counsel, however, a defendant must overcome the strong presumption that counsel rendered effective assistance. See People v. Hobot, 84 NY2d 1021 (1995). The [*5]standard for effective assistance consists of a "flexible approach" that considers "the circumstances of a particular case" in determining whether a defendant has received "meaningful representation." People v. Henry, 95 NY2d 563, 565 (2000), citing People v. Baldi, 54 NY2d 137 (1981). Thus, a court must analyze "the evidence, the law, and the circumstances . . . as of the time of the representation." People v. Henry, 95 NY2d at 565. In the context of a guilty plea, a defendant is deemed to have received effective assistance when a defendant "receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel." People v. Ford, 86 NY2d 397, 404 (1995); see People v. Rodriguez, 189 AD2d 684 (1st Dept. 1993); People v. Thompson, 162 AD2d 153 (1st Dept. 1990).
In the instant matter, the defendant was under indictment for four separate stabbing incidents perpetrated against four different disfigured victims. In each case, the top charge was a class B violent felony offense, for which the defendant faced up to 25 years in state prison. Due, however, to counsel's skillful negotiation, the People eventually offered the defendant a plea that resulted in an aggregate term of imprisonment of twelve years to be followed by five years of post-release supervision for all four slashings. Moreover, counsel was able to convince the People and the Court to run the sentence nunc pro tunc to January 8, 2013 and concurrent with the defendant's anticipated federal sentence. To be sure, through counsel's efforts on his behalf, the defendant avoided not only significantly longer prison sentences, but also consecutive sentences for each of his four victims. So, too, the defendant avoided serving the state sentences consecutively to the federal sentence and received credit for the time he spent in federal custody by means of a nunc pro tunc sentence. That counsel was able to secure this advantageous plea on the defendant's behalf underscores his effectiveness.
Despite the foregoing, the defendant contends that counsel was ineffective for failing to defend him properly and for failing to explain the potential penalties to him. The defendant's contentions are simply belied by the proceedings, and the entirety of the record before this Court. Indeed, a Wade hearing was conducted by this Court on Indictment Number 3980/12. Prior to the commencement of the hearing, counsel demonstrated his familiarity with the instant case, the defendant's other pending assault case, and the defendant's federal matter. So, too, counsel skillfully represented the defendant at the hearing, effectively cross examining the People's witnesses and advancing well-reasoned legal arguments.
Moreover, throughout the Court's extensive plea allocution, discussed at length above, the defendant repeatedly and unequivocally assured the Court that he understood the charges pending against him, the potential sentences he faced, and the legal consequences of entering pleas to those offenses. Indeed, as the excerpts above irrefutably demonstrate, when asked if he understood what he was facing, whether counsel had answered all of his questions satisfactorily, and if he was satisfied with the services provided by counsel, the defendant answered each time in the affirmative. The record is devoid of even a hint that the defendant was in any way uninformed or unprepared to enter the guilty pleas. See discussion infra. Rather, the record speaks to counsel's successful efforts to secure a highly favorable disposition for his client. And, it bears repeating, the defendant received an extraordinarily advantageous plea, in no small part due to counsel's unrelenting advocacy. There is simply no evidence in the record, or otherwise, that counsel failed to represent the defendant to the best of his abilities. Indeed, it is hard to imagine how counsel could have been any more effective. Accordingly, the defendant's motion to vacate the judgments of conviction on the ground of ineffective assistance of counsel is denied.
Conclusion
The defendant's motion is denied in its entirety without a hearing. This constitutes the Decision and Order of the Court. The Clerk of the Court is directed to mail copies of this Decision to the defendant and to the District Attorney's office.
Dated: New York, New York
April 4, 2017
FootnotesFootnote 1:The defendant's cases were repeatedly adjourned for sentence at defense counsel's request, as counsel unceasingly lobbied the Court to run the defendant's sentence concurrent with his anticipated federal sentence — a matter that took many months to resolve. The Court ultimately agreed to run the instant sentences concurrent with the defendant's 97-month federal sentence.
Footnote 2:The defendant appends the sentencing minutes to the instant motion. Those sentencing minutes, of course, do not reflect the Court's comprehensive plea allocution undertaken on an earlier occasion. The Court did, however, briefly re-allocute the defendant at the time of sentence as he had failed to take responsibility for his crimes when interviewed by the Department of Probation. Indeed, the defendant during that interview claimed the slashings were merely "fights." Despite the defendant's assertion to the Department of Probation, the Court did not enhance the defendant's sentence, instead imposing the promised sentence.
Footnote 3:The defendant's related claim that he received ineffective assistance of counsel in connection with the pleas is addressed infra.
Footnote 4:Despite the Court's warning, the defendant failed to accept responsibility when interviewed by the Department of Probation. The Court, nevertheless, did not enhance the defendant's sentence.
Footnote 5:To the extent the defendant instead claims that he was under the influence of assorted substances at the time of sentence, that too is belied by the record and, in any event, not a basis for vacating the judgments of conviction.
Footnote 6:The defendant's final complaint with respect to counsel's representation — that counsel did not provide him or members of his family with a receipt for a retainer paid on his behalf — even if true, does not support vacatur of the judgments of conviction.
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