People v Coomber
Annotate this CaseDecided on March 15, 2005
County Court, Seneca County
THE PEOPLE OF THE STATE OF NEW YORK,
against
Holly Coomber, Defendant-, Petitioner.
87-27B
Hon. Richard E. Swinehart,
Seneca County District Attorney,
Robert A. Mascari, Esq., of Counsel,
Counsel for the People
Randi Judi Bianco, Esq,
Barbara E. Farrell, Esq., and
New York State Defenders Association,
Stephanie J. Batcheller, of Counsel,
Attorneys for Petitioner.
W. Patrick Falvey, J.
The defendant, moves this court to vacate her June 29, 1989 conviction, after a guilty plea, for the crimes of Robbery, First Degree, and Assault, First Degree, pursuant to Article 440 of the Criminal Procedure Law. This plea was in full satisfaction to a six count indictment charging two counts of Murder in the Second Degree, two counts of Robbery in the First Degree, one count each of Criminal Use of a Firearm in the First Degree and Criminal Possession of a Weapon in the Second Degree.
Based on the defendant's submissions, the People's response and all the proceedings had herein the Court decides as follows:
Defendant bases her motion on the ground of ineffective assistance of counsel, and violation of her right to due process under both the United States and New York Constitutions, in that her guilty plea was not knowingly, voluntarily or intelligently made. She further argues that her sentence is cruel and inhuman punishment in violation of the United States and New York Constitutions. The defendant's sentence was made to run consecutively to the life sentence she previously received in Georgia for a murder of a store clerk in that state. [*2]
The People oppose the motion, noting that the defendant received a favorable outcome in that she satisfied a six count indictment against her, which included the top two counts of Murder in the Second Degree, and received an effective sentence of 12 ½ to 25 years, instead of the possible life sentence she could have received if she had been tried and convicted of either of the Murder charges. In addition, defendant could have received an aggregate minimum of as much as 37 ½ years if also convicted of the Criminal Use of a Weapon charge and sentenced consecutively. Penal Law §70.25(1).
Further, the People argue the record reveals that defense counsel offered competent representation to the defendant. The defendant's assertion that she had a viable defense of duress, which was not explored by her attorney, is not supported by the facts of the case, as the law in New York would be applied to such facts. PL §40.00. As for the sentence received, the People note that the defendant did appeal the sentence imposed in the case on the ground that the consecutive sentence imposed was unduly harsh and or severe. CPL § 470.15(6)(b). The Fourth Department affirmed the sentence without opinion. People v Coomber, 166 AD2d 934.
In the fall of 1986, while the defendant was 17 years old, she participated in two armed robberies and murders of convenience store clerks, first in Georgia, then in Seneca County, New York. Her co-defendant, William Allen, 47 years old at the time, was her foster parent, guardian, and the father of a child she gave up for adoption while the two lived in Missouri. The Georgia crimes were prosecuted first, and defendant received a life sentence on her guilty plea there, in exchange for her testimony against William Allen. It is this life sentence to which her New York sentence runs consecutively.
As the People point out, it appears that the Fourth Department determined the sentence imposed was not unauthorized, illegally imposed or otherwise invalid as a matter of law, since the sentence was the only issue addressed in the appeal. Therefore, this aspect of the defendant's instant motion is denied. CPL § 440.20(2). Further, this Court finds that the sentence was not unauthorized, illegally imposed or otherwise invalid as a matter of law.
Petitioner grounds her motion on CPL § 440.10(1)(e), (f) and (h). The Court agrees with the People, that subdivision (f) cannot apply, because there was no trial held in this matter. Nor, has petitioner shown that subdivision (e) applies. The colloquy on the record during her plea belies this assertion. See Transcript of Plea, May 8, 1989, page 17, line 7 et seq.
Thus, the only ground that bears further consideration is whether the judgment was obtained in violation of the defendant's rights under the Unites States or New York Constitutions. CPL § 440.10(1)(h). To prove ineffective assistance of counsel under the Federal Constitution, the defendant must prove her attorney's performance fell below an objective standard of reasonableness and she was prejudiced as a result. Hill v Lockhart, 474 US 52, at 57, 106 S. Ct. 366, 88 L. Ed. 2d 203, 54 USLW 4006.
Under New York's Constitution, "A defendant has been afforded meaningful representation when he or she received an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel. People v Boodhoo, 191 AD2d 448, 449; People v Mayes, 133 AD2d 905,906." People v Ford, 86 NY2d 397,404.
When presented with a motion pursuant to Article 440 of the Criminal Procedure Law, the Court may deny the same, when, although facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the [*3]record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal. CPL §440.10(3)(a).
The Court concludes that the defendant in this case could have pursued the issues now presented on appeal and could have made facts in support of those ground(s) appear on the record in a manner to have provided adequate basis for review of the grounds on an appeal.
In addition, in considering the merits of the defendant's application, the Court may deny it, without conducting a hearing, if an allegation of fact essential to support the motion is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence and under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true. CPL §440.30(4)(d).
Here, the Court notes, that during the plea colloquy on May 8, 1989, the Court asked the defendant, among other things: "Do you know that you could receive a maximum of 12 ½ to 25 years in a correctional institution for the crime of Robbery in the First Degree? And you could also, for the crime of Assault in the First Degree, receive a maximum of 5 to 15 years in a correctional institution, do you understand that?" The petitioner responded "Yes, sir." to both questions. Transcript of Plea, page 13, line 10 et seq.
Later, the Court asked: "Do you understand that the District Attorney is going to be recommending these maximums and the court has made no commitment with respect to the punishment to be imposed?" The petitioner responded: "Yes, sir." Transcript, pg 14, line 12, et seq.
The Court amplified later: "You also understand that this court has not made any commitment to give you anything lesser in return for your pleas of guilty this morning?" The petitioner responded: "Yes, sir." Transcript, pg 15, line 7, et seq.
The Court further inquired: "Are you satisfied with your representation?" The defendant responded: "Yes, sir." Transcript of plea, May 8, 1989, pg17, line 1, et seq.
Based upon a careful review of the plea colloquy, the Court concludes that there is no reasonable possibility that the defendant's allegations, that she received ineffective assistance of counsel, and that her due process rights were violated, could be true. This Court notes that there was no mention during the plea concerning the Georgia sentence, including that the sentence in New York would be concurrent with that in Georgia. To the contrary, the sentencing Court carefully pointed out to the defendant that it was making no commitment to her regarding sentence, other than she was subject to the maximum sentences possible for each crime. It is also noted that a sentence consecutive to the undischarged Georgia sentence would be the case unless the New York Court specified otherwise. Penal Law §70.25(4). In this regard, defendant's counsel urged that the New York sentence run concurrent to the Georgia sentence (Transcript of Sentence, June 29, 1989, pg.5, line 13, through pg. 12 line 24), which was rejected by the Court. Transcript of Sentence, June 29, 1989, Pg. 17, line 16-23.
Further, under the standard articulated in People v Ford, 86 NY2d 397, supra, the defendant herein received an advantageous plea, in that her exposure was to a sentence of a maximum of life for the murder counts and a possible minimum of 37 ½ years if sentenced to [*4]consecutive terms if also convicted of the Criminal Use of a Weapon count. However, the defendant was allowed to plead to the lesser counts, and received a concurrent sentence totaling 12½ - 25 years instead. Additionally, nothing in the record before this Court casts doubt on the apparent effectiveness of counsel. People v. Ford, 86 NY2d 397. The fact that she received a favorable sentence, following an advantageous plea also satisfies the Federal Constitutional standard. Hill v. Lockhart, 474 US52, supra.
The Court concludes that the defense of duress would not have been properly charged to a jury in a trial of this case, in that the defendant could not show the use or threatened imminent use of unlawful physical force upon her at the time of the crime. PL § 40.00(1). Nor, would it have been available to this defendant in light of the Georgia murder that occurred only two weeks before; as it would appear that the defendant intentionally or recklessly placed herself in a situation in which it was probable that she would be subject to duress. PL § 40.00(2).
Defendant's motion is denied in all respects.
The foregoing constitutes the Opinion, Decision and Judgment of this Court.
SO ORDERED.
Dated: March 15, 2005
_________________________
W. Patrick Falvey
Acting Seneca County Judge
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