People v Caldwell

[*1] People v Caldwell 2004 NY Slip Op 50975(U) Decided on July 12, 2004 Supreme Court, Kings County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2004
Supreme Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK

against

DEREK CALDWELL



7113/84

Hon. Anne G. Feldman, J.

On February 13, 1985, defendant was convicted by guilty plea under indictment No. 6420/83 of robbery in the first degree as a youthful offender[FN1], under indictment No. 7014/84 of burglary in the second degree, and under indictment No. 7113/84 of robbery in the first degree. Pursuant to a plea agreement defendant was sentenced to concurrent terms of imprisonment of one and one-third to four years, two to six years and three to nine years respectively. Defendant never appealed his convictions to the Appellate Division Second Department.

Defendant now moves pursuant to CPL 440.10 to vacate the judgement of conviction as to indictments 7014/84 and 7113/84. Defendant claims that his pleas were involuntary; that his allocution was factually insufficient to establish the elements of burglary in the second degree and robbery in the first degree; and that his attorney was ineffective for advising him to plead guilty and for failing to challenge his competency.

Defendant's claims regarding the voluntariness and sufficiency of his pleas are procedurally barred. CPL 440.10(2)(c) mandates denial of a motion where sufficient facts appear on the record to permit appellate review of an issue but no such review occurred due to the defendant's

unjustifiable failure to raise the issue on appeal (see People v Cooks, 67 NY2d 100 [1986]).

Defendant's claims are also belied by the record. It is apparent from the transcript that his plea allocution was voluntary, knowing and intelligent and that he understood the proceedings in which he participated and by which he gained the benefit of a substantially reduced sentence. Furthermore, in light of the psychiatric report finding defendant fit to proceed, there is no support in the record to indicate that he lacked the capacity to understand the proceedings at the time of his plea allocution.

Defendant's allegation of ineffective assistance of counsel is also rejected. A defendant is afforded effective assistance of counsel so long as "the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]). Counsel's performance must not only be shown to be deficient, but must also be shown to have prejudiced defendant (see People v Benevento, 91 Ny2d 708, 713-714 [1998]; People v Ford, 86 NY2d 397, 405 [1995]). "In the [*2]context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness" (People v Ford, 86 NY2d at 404; People v Mobley, 221 AD2d 376 [2d Dept 1995]).

In this instance counsel negotiated a beneficial disposition for defendant that considerably reduced his exposure to incarceration. Defense counsel had no reason to believe that defendant was not competent to enter the pleas. He and the court properly relied on the psychiatric report submitted less than 50 days earlier as a basis for concluding that defendant had the requisite mental capacity to understand the proceedings.

Accordingly, defendant's motion is denied.

This decision shall constitute the order of the court.

E N T E R :

J.S.C. Footnotes

Footnote 1: Defendant does not challenge this conviction in his present motion.