People v Torres

[*1] People v Torres 2017 NY Slip Op 50991(U) Decided on August 4, 2017 Supreme Court, Kings County D'Emic, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2017
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Ranly Torres, Defendant.



10083/2015



Ranly Torres, Defendant Pro Se (Dannemora, New York).

The People are represented in this matter by Eric Gonzalez, Acting District Attorney, Kings County, Brooklyn, New York (Angelina Ibragimov, of counsel).
Matthew J. D'Emic, J.

Defendant's pro se motion seeks an order, pursuant to CPL § 440.20, setting aside his sentence on the ground that it was illegally imposed. Although defendant purports to be seeking relief solely under CPL § 440.20, the majority of his claims may only be raised pursuant to CPL § 440.10. The People, recognizing that defendant desires relief afforded by CPL § 440.10, tailored their opposition papers accordingly. Thus, where appropriate, this court will consider defendant's motion as a CPL § 440.10 motion. Upon review of the papers submitted by defendant and the People, defendant's motion is denied in its entirety.

Background

Prior to the incident underlying defendant's conviction, defendant was in an intimate relationship with complainant Sarah Figuero ("complainant Sarah") for approximately three months. On October 22, 2015, defendant and complainant Sarah were engaged in a verbal dispute inside complainant Sarah's apartment. Christian Figuero ("complainant Christian"), who is complainant Sarah's son, overheard defendant speaking poorly to his mother from another room inside the residence, and went to confront defendant about his conduct. When complainant Christian approached defendant, defendant repeatedly punched him about the face, knocking him to the ground, and thereafter continued to kick and punch complainant Christian while he was lying on the floor. When complainant Sarah attempted to intervene, defendant punched her about the face numerous times.

Defendant thereafter picked up a collectible dagger and used it to stab complainant Christian about the leg multiple times. When complainant Sarah attempted to intervene again, defendant also stabbed her with the dagger. Both complainants were transported by EMS to [*2]Lutheran Hospital for medical treatment. Complainant Christian sustained lacerations to his lip and forearm, a deep laceration to his thigh and a broken kneecap; he required stitches to the lip and forearm, staples on his leg, and continues to have limited mobility as a result of his injuries. Complainant Sarah suffered multiple stab wounds about the thigh, from which she still has two scars.

Although a call was placed to 911 to report the incident, defendant fled the location before officers responded to the scene. Upon learning that the defendant had absconded to Puerto Rico, the People presented the instant matter to the grand jury as a silent indictment; defendant was charged under Kings County Indictment Number 10083/2015 with, inter alia, assault in the first degree and two counts of assault in the second degree.

On April 26, 2016, defendant was placed under arrest following his extradition from Puerto Rico. Defendant was arraigned on Indictment Number 10083/2015 in Supreme Court on April 27, 2016, at which time he declined the People's plea offer to the top count of assault in the first degree with twenty years' incarceration and full orders of protection issued in favor of both complainants. The People's offered the same plea deal on each subsequent court date, until March 21, 2017, when the matter was scheduled and ready to proceed to trial. At that time, the People amended their offer to twelve years' incarceration on the top count of the indictment. At defense counsel's request, this court extended a one-time offer of a ten-year prison sentence on the charge of assault in the first degree. Defendant accepted the court's offer, and the court informed defendant that, upon entry of a guilty plea, defendant would not be permitted to withdraw his plea and proceed to trial. The court also stated that its offer was subject to defendant's waiver of his right to appeal. Following the court's admonitions, defendant entered a plea of guilty to assault in the first degree and the matter was adjourned to April 5, 2017 for sentencing.

At the sentencing proceeding, the court denied defendant's pro se motion for re-assignment of counsel. Defendant then stated that he was "going to take back [his] plea." When the court inquired as to the reason defendant wished to withdraw his plea, defendant merely stated that he wanted to "take it to trial." The court thereafter denied defendant's request and imposed the promised sentence of ten years' incarceration with five years' post-release supervision and full orders of protection executed on behalf of both complainants.

Defendant's Present Motion

CPL § 440.10 Claims

The court discerns three general constitutional-rights-based claims raised in defendant's motion that are cognizable under CPL § 440.10(1)(h): (1) that the court coerced defendant into pleading guilty, rendering his plea involuntary; (2) that the court deprived defendant of his right to a trial by jury by denying defendant's request to withdraw his guilty plea; and (3) that defendant received ineffective assistance of counsel. Defendant also seeks to vacate the judgment of conviction on statutory grounds, arguing both that he was denied the right to testify in the grand jury, in violation of CPL § 190.50, and that he was deprived of a speedy trial for purposes of CPL § 30.30.

The defendant's contention that his plea was involuntary is predicated upon his allegation that the court told him that he had two minutes to decide whether to plead guilty and receive a prison term of ten years or to go to trial and be sentenced to twenty years' incarceration. In [*3]opposition, the People argue that defendant's claim is procedurally barred pursuant to CPL §440.10(2)(c). Alternatively, the People aver that, because defendant's allegations are belied by the record, his motion should be denied in accordance with CPL § 440.30(4).

CPL §440.10(2)(c) mandates denial of a motion to vacate judgment when

"[a]lthough 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 . . . ."

Despite discrepancies between the information provided by the minutes of the plea proceeding and defendant's recitation of facts herein, defendant's claim is based entirely upon the events that transpired during the proceeding, which were transcribed and maintained as part of the official record. The minutes indicate that the court informed defense counsel that, due to the court's schedule, defendant's case would be sent to another part for trial unless defendant accepted the court's offer within the next two minutes - which is the crux of defendant's argument.[FN1] Therefore, because there were sufficient facts on the record to have permitted the issue to be reviewed, the voluntariness of defendant's plea may only be addressed on direct appeal, and may not be considered on a CPL § 440.10 motion to vacate (People v Stewart, 16 NY3d 839 [2011]; People v Cooks, 67 NY2d 100, 104 [1986]).

As the People allude to, defendant's execution of a valid waiver of appeal does not constitute a justifiable excuse for his failure to take a timely appeal, as a "claim regarding the voluntariness of [defendant's] plea survives his waiver of the right to appeal" (People v Espejo, 145 AD3d 1031, 1031 [2d Dept 2016], lv denied 28 NY3d 1183 [2017]); People v Seaberg, 74 NY2d 1 [1989]). Accordingly, defendant's involuntary plea claim is denied.

Similarly, CPL § 440.10(2)(c) also mandates that defendant's claim that he was deprived of his constitutional right to a trial by jury be summarily denied.[FN2] The factual allegations upon which defendant bases his argument mirror those adduced on the record during defendant's sentencing proceeding - namely, his statement that he wished to withdraw his plea because he wanted to take the case to trial. Because the minutes were sufficient to permit appellate review of the issue, due to defendant's failure to take a timely appeal he is procedurally barred from raising this contention herein.

Moreover, even if this court were to presume that a motion to vacate was the proper forum to address the matter, defendant's claim is without merit. Defendant was represented by counsel during his plea allocution, indicated that he understood that he was waiving his right to a jury trial, stated that he wished to plead guilty and admitted to engaging in acts constituting the crime to which he pled guilty. Accordingly, defendant's plea was knowing, voluntary and intelligent (see People v Harris, 61 NY2d 9 [1983]).

Where a defendant knowingly, voluntarily and intelligently pleads guilty, the decision whether to allow the defendant to withdraw said plea rests within the sound discretion of the trial court (People v Smith, 54 AD3d 879 [2d Dept 2008], lv denied 11 NY3d 857 [2008]). The sole reason defendant proffered as to why he wished to "take back" his plea was that he decided that he would rather "take it to trial." Given the court's prior admonition that it would not permit defendant to withdraw his guilty plea once it was entered, and in the absence of any "indication of innocence, fraud, or mistake in [] inducement" of the plea, the court properly denied defendant's request (People v Rodriguez, 142 AD3d 1189, 1190 [2d Dept 2016] [internal citations omitted], lv denied 28 NY3d 1126 [2016]). Therefore, defendant's claim that he was deprived of his constitutional right to a trial by jury is denied.

Additionally, defendant seeks relief on the ground that he received ineffective assistance of counsel. The allegations supporting defendant's claim involve matters contained both in and outside of the record. As such, a CPL § 440.10 motion to vacate is the appropriate avenue through which defendant may seek relief, so the court will consider defendant's contention on the merits (see CPL § 440.10[2][b]; People v Freeman, 93 AD3d 805 [2d Dept 2012], lv denied 19 NY3d 960 [2012]).

As proof that his attorney was ineffective, defendant only proffers his own statement of facts, in which he alleges, inter alia, that his attorney failed to discuss possible defense strategies with him or to submit any motions or make any arguments his behalf. The People aver that defendant's claim should be denied in accordance with CPL § 440.30(4)(b) because it rests wholly upon conclusory statements that are insufficient to substantiate all essential facts. The People further maintain that, even presuming defendant's allegations to be true, defense counsel's conduct did not rise to the level of ineffective assistance of counsel under either the federal or state standard.

To substantiate a claim of ineffective assistance of counsel under the Sixth Amendment of the United States Constitution, a defendant must establish "that (1) his or her attorney committed errors so egregious that he or she did not function as counsel within the meaning of the United States Constitution, and (2) that counsel's deficient performance actually prejudiced the defendant" (People v Gross, 26 NY3d 689, 693 [2016], citing Strickland v Washington, 466 US 668, 687-688 [1984]). The first prong evaluates whether counsel's assistance fell below an objective standard of reasonableness (Hill v Lockhart, 474 US 52, 59 [1985]). To make the requisite showing of prejudice for purposes of Strickland's second prong, a defendant must show "that 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" (Hill, 474 US at 59).

To show that there was a violation of a defendant's right to counsel under the New York State Constitution also requires a showing that defense counsel failed to meet the base threshold of effectiveness and that prejudice thereafter ensued to defendant (People v Turner, 4 NY3d 476, 479 [1981]). Although New York's jurisprudence on the issue comports with the first prong of Strickland, it deviates from its so-called "but-for" prejudice prong, and instead "focus[es] on the fairness of the process as a whole rather than the particular impact of counsel's alleged ineffectiveness on the outcome of the case" (People v Sanchez, 124 AD3d 685, 687 [2d Dept 2015] [internal citations omitted], lv denied 25 NY3d 1207 [2015]). While prejudice is still a crucial component of the court's analysis, "[s]o long as the evidence, the law and the [*4]circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met" (People v Baldi, 54 NY2d 137, 147 [1981] [internal citations omitted]).

The court need not address the merits of defendant's arguments pertaining to the deficiency prong because defendant has failed to make the requisite showing of prejudice (Hernandez, 22 NY3d at 977 n). "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she obtains an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404 [1995] [internal citations omitted]).

At the time defendant pled guilty, he was charged with numerous felony offenses, including assault in the first degree as to complainant Christian. If convicted after trial on the charge to which he pled guilty, defendant could have been sentenced to a maximum term of twenty-five years' incarceration (see PL § 120.10; 70.00[2][b]). Additionally, defendant faced a prison term of one to seven years for the top charge with respect to complainant Sarah, assault in the second degree (see PL §§ 120.05; 70.00[2][d], 70.00[3][b]). Immediately prior to the plea proceeding, the People amended their offer to carry a recommended sentence of twelve years' incarceration, having previously refused to recommend a term of less than twenty years.

After conversing with the court, defense counsel was able to secure a ten-year prison term for defendant, which was more favorable than either the People's offer or the maximum sentence defendant would have faced if convicted at trial. The record is devoid of anything that would cause this court to believe that defense counsel otherwise failed to provide meaningful representation. Therefore, defendant has not demonstrated that he received ineffective assistance of counsel under the state standard.

Because the state standard offers defendant greater protection than the federal standard, the court "necessarily reject[s] defendant's federal constitutional challenge by determining that he was not denied meaningful representation under the State Constitution" (People v Caban, 5 NY3d 143, 156 [2005]). Hence, defendant's claim of ineffective assistance of counsel is denied.

As a corollary argument, defendant asserts that the court impermissibly denied his pro se motion, dated March 25, 2017, for reassignment of counsel, pursuant to County Law § 722. In its discretion, a trial court may appoint new counsel for an indigent defendant upon a showing of good cause, such as where there is a conflict of interest or irreconcilable differences (People v Medina, 2 NY3d 507 [2004]). "In determining whether good cause exists, a trial court must consider the timing of the defendant's request, its effect on the progress of the case and whether present counsel will likely provide the defendant with meaningful assistance" (People v Linares, 2 NY3d 507, 510 [2004]; People v Ayuso, 80 AD3d 708 [2d Dept 2011], lv denied 16 NY3d 856 [2011]).

At the time of defendant's motion, he had already pleaded guilty and his case was adjourned for sentencing. The late stage of the proceedings heavily militated against reassignment of defense counsel. Having previously determined that defendant should not be permitted to withdraw his guilty plea, as well as the terms of defendant's sentence, there was no reasonable basis upon which to grant defendant the relief sought therein. Thus, it was permissible for this court to deny defendant's request without further inquiry (People v Gaines, 212 AD2d [*5]727 [2d Dept 1995], lv denied 85 NY2d 938 [1995]).

Defendant's speedy trial claim is also without merit. Although a constitutional speedy trial claim will survive a valid plea (People v Tiger, 149 AD3d 86 [2d Dept 2017]), defendant asserts only his statutory right under CPL § 30.30, which he waived by pleading guilty (People v Douglas, 46 AD3d 698 [2d Dept 2007], lv denied 10 NY3d 810 [2008]; People v O'Brien, 56 NY2d 1009 [1982]).

Lastly, defendant seeks relief on the ground that his statutory right to testify in the grand jury was waived without his consent. To be entitled to testify before the grand jury, a defendant must furnish the People with written notice of his intent to appear as a witness in the proceeding prior to the filing of any indictment (CPL § 190.50[5][a]). Here, defendant was charged by a silent indictment - due to defendant absconding to Puerto Rice - and the People were not required to notify defendant that a grand jury proceeding against him was pending (id.). Because defendant "did not allege in his motion papers that he would have served written notice to the District Attorney of his request to appear before the grand jury had he been informed of the pending grand jury proceeding...defendant's allegation that he was deprived of that right remains speculative" (People v Martin, 132 AD3d 909, 910 [2d Dept 2015], lv denied 26 NY3d 1110 [2016]). There are no assertions of fact "which would suggest that he was prejudiced by his failure to testify before the grand jury," warranting denial of defendant's claim (People v Toland, 2 AD3d 1053, 1056 [3d Dept 2003] [internal citations omitted], lv denied 2 NY3d 808 [2004]).

CPL § 440.20 Claims

Defendant seeks to vacate his sentence on the ground that it was illegally imposed. The bases of defendant's claim are, in sum and substance, that he was denied a persistent felony offender hearing pursuant to CPL § 400.20 and that the sentence imposed was "cruel and harsh for a first time felon," in light of the complainants' injuries. The People highlight the fact that defendant's papers do not allege any legal defect in his sentence and maintain that the court's sentence was permissible under PL § 70.02(3)(a).

CPL § 440.20 authorizes a court to set aside a sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law. Initially, the court notes that the majority of defendant's allegations only bear on the question of whether his sentence was excessive, which falls outside the court's purview in considering defendant's CPL § 440.20 motion (People v Cunningham, 305 AD2d 516 [2d Dept 2003]).

Thus, the court need only address defendant's argument that the court was not authorized to impose a sentence without first holding a persistent felony offender hearing pursuant to CPL § 400.20. The record reflects that neither the People nor the court attempted to sentence defendant as a persistent felony offender under PL § 70.10. Consequently, defendant was not entitled to a CPL § 400.20 hearing prior to sentencing.

The court-imposed sentence of ten years' imprisonment followed by five years of post-release supervision falls within the sentencing range authorized by PL § 70.02(3)(a) for a non-predicate offender convicted of a Class B violent felony offense.[FN3] "Because the defendant received exactly the same sentence for which he bargained, he has failed to articulate any [*6]reason...to set aside his sentence" (People v Sebastian, 38 AD3d 576, 576 [2d Dept 2007]).

Accordingly, defendant's motion is hereby denied in its entirety.

This constitutes the decision and order of the court.

E N T E R:

_________/S/_______________

MATTHEW J. D'EMIC, J.S.C. Footnotes

Footnote 1:However, despite defendant's claims to the contrary, the record makes evident that the court had allowed defense counsel time to confer with defendant regarding the court's offer prior to the plea proceeding, which patently contradicts defendant's assertion that he was only provided two minutes to consider the court's offer.

Footnote 2:The People oppose this claim on the same grounds they asserted with respect to defendant's allegation that his plea was involuntary - to wit, that defendant is procedurally barred from asserting his claim pursuant to CPL §§ 440.10(2)(c) and 440.30(4)(d).

Footnote 3:The permissible sentencing range was a minimum of five years and a maximum of twenty-five years' incarceration (see PL §§ 120.10; 70.02[3][a]).