People v Rana (Zahid)

[*1] People v Rana (Zahid) 2015 NY Slip Op 51029(U) Decided on July 1, 2015 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2011-3228 Q CR

The People of the State of New York, Respondent,

against

Zahid Rana, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Elisa S. Koenderman, J.), rendered October 31, 2011. The judgment convicted defendant, upon his plea of guilty, of endangering the welfare of a child.

ORDERED that the judgment of conviction is affirmed.

On February 19, 2011, the People charged defendant, in a felony complaint, with criminal sexual act in the first degree (Penal Law § 130.50 [3]) and endangering the welfare of a child (Penal Law § 260.10 [1]). On February 25, 2011, the prosecutor moved to dismiss the felony charge pursuant to a plea and sentencing agreement whereby, upon his plea of guilty to endangering the welfare of a child, a misdemeanor, defendant would be sentenced to three years' probation and an order of protection

would issue on the child's behalf. In the course of the plea, before Judge Stephanie L. Zaro, defendant, assisted by new counsel and a Punjabi interpreter, admitted that he had committed the offense "[b]y striking the child." On April 11, 2011, before Judge Elisa S. Koenderman, the People announced that they intended to file a superseding accusatory instrument. On April 13, 2011, a prosecutor's information was filed, which alleged that defendant had committed the offense of endangering the welfare of a child by repeatedly striking the child.

On April 18, 2011, the Criminal Court (Elisa S. Koenderman, J.) vacated defendant's plea, and defendant, purportedly assisted by a Spanish interpreter and represented by new counsel, pleaded guilty to the superseding instrument in return for a sentence promise of three years' probation. In the course of the plea, defendant stated that he was pleading guilty because he was, in fact, guilty of the charge. At the October 31, 2011 sentencing (Elisa S. Koenderman, J.), the court declined "to grant any motions by the defendant to withdraw his plea" but, after a bench conference with the People and defendant's third assigned counsel, and without objection by the People, the court reduced the sentence provided for in the plea agreement to a conditional discharge, imposed the mandatory surcharge, ordered defendant to provide a DNA sample, and issued an order of protection on the child's behalf. On the same day, the matter was re-called to the calendar after defendant had refused to provide the DNA sample. The court advised defendant that the sample was mandated by law, whereupon defendant, assisted by an Urdu translator, orally moved to withdraw his guilty plea. The court declined to consider the motion, referring defendant to his attorney for advice as to how to proceed. The defense did not [*2]thereafter move to withdraw the plea.

On appeal, defendant argues that the plea should be vacated because (1) he speaks Urdu and Punjabi, but little or no English, and so the use of a Spanish interpreter meant that he did not understand the nature of the proceedings; (2) he was not informed of the consequences of the plea, namely, that a stay-away order of protection would issue on the child's behalf, that he would be assessed a surcharge, and that he would be required to provide a DNA sample; and (3) he never allocuted to a factual basis of the charge. Defendant also alleges prosecutorial misconduct and the ineffective assistance of counsel. These claims are either unpreserved or without merit. Defendant's oral motion to the Criminal Court, which was based on a bare claim of innocence, was insufficient to preserve the claim that the allocution was insufficient to support the plea (see CPL 470.05 [2]; People v Toxey, 86 NY2d 725, 726 [1995]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Pratcher, 50 AD3d 1063, 1063 [2008]; People v Elcine, 43 AD3d 1176, 1177 [2007]). In any event, "[a] plea of guilty will be sustained in the absence of a factual recitation of the underlying circumstances of the crime if there is no suggestion that the plea of guilty was improvident or baseless" (People v Winbush, 199 AD2d 447, 448 [1993]; People v Daley, 23 Misc 3d 145[A], 2009 NY Slip Op 51168[U] [App Term, 1st Dept 2009] [same]; see also People v Pratcher, 50 AD3d at 1064). Here, in the course of an otherwise relatively full allocution, defendant said nothing that would raise a question as to his guilt or whether the plea was less than knowingly, intelligently, and voluntarily entered, and he admitted that he was pleading guilty because he was, in fact, guilty of the offense charged. Defendant's claim that the plea was not validly entered because he had not been informed of certain consequences of his plea also lacks merit. The consequences he identifies need not be announced prior to a plea because they "are not components of a defendant's sentence" (People v Guerrero, 12 NY3d 45, 47 [2009] [mandatory surcharges]; see People v Hoti, 12 NY3d 742, 743 [2009] [same]; People v Nieves, 2 NY3d 310, 316 [2004] [orders of protection]; People v Cooks, 107 AD3d 734, 735 [2013] [DNA sample]).

While the transcript of the proceeding of April 18, 2011 indicates that a court officer referred to the presence of a Spanish interpreter, it is unlikely that counsel for the parties or the court would have allowed the proceedings to go forward knowing full well that defendant had previously been assisted by a Punjabi interpreter (defendant states that he also speaks Urdu, the latter being the language used by the interpreter at the sentencing proceedings) and was not of Hispanic origin. An examination of the record of the plea proceedings reveals that defendant responded appositely to questions requiring, variously, a yes or no answer, and without indication, at any juncture, that he may not have understood the questions. In any event, a "presumption of regularity attaches to judicial proceedings" (People v Cruz, 14 NY3d 814, 816 [2010]; e.g. People v Sanders, 119 AD3d 878, 878 [2014]), which a defendant can rebut only by "substantial evidence" (Cruz, 14 NY3d at 816). A single statement by a court officer apparently misidentifying the language used by the interpreter, considered in light of the subsequent proceedings which exhibited nothing to indicate miscommunication or a misunderstanding of what was said by anyone, is insufficient to overcome that presumption.

Defendant's claims of trial counsels' ineffectiveness (defendant was represented by three different attorneys) are that the attorneys were either aware of exculpatory evidence or that a proper investigation would have revealed that there existed a complete defense to the charge; that defendant's second counsel, who first appeared at the February 25, 2011 proceedings, within "seconds" of being assigned, stated that he and the prosecution had agreed upon the terms of a plea and sentencing agreement, revealing that counsel was interested only in a quick resolution of the case; and that defendant's third counsel's failure to move to withdraw the plea based on the exculpatory evidence, of which counsel was aware prior to sentencing, deprived defendant of the opportunity to obtain a trial on the charge.

First, defendant's references to his counsels' conduct and motivations with respect to the defense and in advising defendant to accept the plea and sentencing agreement are matters dehors the record, which are not reviewable on direct appeal (see People v Boyce, 118 AD3d 1016, 1016 [*3][2014], and citations therein). Such matters are properly explored in a motion pursuant to CPL 440.10 to permit the record to be expanded, by affidavit or testimony under oath, as to the facts and issues that affected counsels' representation (see e.g. People v Medina-Gonzalez, 116 AD3d 519, 520 [2014]). This is not one of those "rare instances" (id.) where the record is sufficient to permit adequate review of the claims without the benefit of the motion (see People v Brown, 45 NY2d 852, 853-854 [1978]).

In any event, "[t]o the extent that the existing record permits review" (People v Lopez, 2 AD3d 234, 234 [2003]), we find no grounds from which to infer that defendant's attorneys were ineffective.

"The right to effective assistance of counsel is guaranteed by the Federal and State constitutions . . . . Under the federal standard . . ., a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . . Under the state standard, the constitutional requirements for the effective assistance of counsel are met when the defense attorney provides meaningful representation" (People v Mehmood, 112 AD3d 850, 854 [2013] [internal quotation marks and citations omitted]).

There is no record of the representation of defendant's first counsel, as his appearance on February 25, 2011 was limited to turning over the case file to defendant's second counsel. There is nothing inherently infirm in defendant's second counsel's attempt to negotiate a plea and sentencing agreement that involved no incarceration, rather than risk a conviction after trial, whereupon sentencing would be entirely within the court's discretion. At sentencing, defendant's third counsel argued successfully that, because the felony charge had been dismissed, any portion of the record (in particular, the presentence report) that referred to sexual misconduct should be expunged. Also at sentencing, following an off-the-record bench conference, the court significantly reduced the sentencing portion of the plea agreement, from three years' probation to a conditional discharge. We note that the Criminal Court properly declined, while defendant was represented by counsel, to entertain defendant's oral pro se motion to withdraw his plea (see People v Rodriguez, 95 NY2d 497, 501-502 [2000]; People v Toland, 2 AD3d 1053, 1056 [2003]). In any event, there is no compelling basis in the existing record from which to infer that such a motion would have been meritorious. Thus, the absence of the motion cannot be considered indicative of ineffective representation. On this record, defendant was not denied the effective assistance of counsel under either the federal standard (Strickland v Washington, 466 US 668, 694 [1984]) or the state standard (People v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).

Defendant argues that prosecutorial misconduct is exhibited by the People's acknowledgment that they could not prove the felony charge on credibility grounds, which implicates the propriety of continuing to prosecute the remaining charge, presumably based on the same proof. Further, the restatement, in the superseding accusatory instrument, of the factual basis of the offense suggests that the new instrument was brought without a proper investigatory review and as a contrivance to obtain a conviction, the plea to which defendant, however innocent, could not initially resist given the threat of incarceration upon conviction after trial.

As these claims depend almost entirely on speculation as to events occurring dehors the record and to suspected unprofessional motivations, there is an insufficient basis on the available record to reverse the judgment of conviction (see e.g. People v Boley, 116 AD3d 965, 965 [2014] ["(D)efendant's contention that the prosecutor committed prosecutorial misconduct because he [*4]failed to conduct a thorough investigation rests on matter dehors the record and, thus, is not properly before this Court"]). Further, as an officer of the court, a prosecutor has "obligations of candor and fair dealing" (People v Thompson, 22 NY3d 687, 713 [2014]; see also People v Hameed, 88 NY2d 232, 238 [1996]), and the reciprocal of that obligation is that a prosecutor's representations as to threshold issues are presumed consistent therewith (People v Poole, 48 NY2d 144, 149 [1979]). In any event, defendant has not preserved his claims that the prosecutor conducted himself in a fashion inconsistent with this standard, as he failed to raise them in the trial court (CPL 470.05 [2]; People v Christie, 55 AD3d 341, 342 [2008]), and, in view of the nebulous and highly speculative nature of the basis of the claims, we decline to address them in the interest of justice.

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: July 01, 2015