People v Collazo

[*1] People v Collazo 2006 NY Slip Op 50185(U) [11 Misc 3d 1052(A)] Decided on February 14, 2006 County Court, Suffolk County Gazzillo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 14, 2006
County Court, Suffolk County

THE PEOPLE OF THE STATE OF NEW YORK,

against

PEDRO COLLAZO, Defendant



1690-2004



Suffolk County District Attorney

By: A.D.A. Michael H. Blakey, Esq.

Criminal Courts Building

200 Center Drive

Riverhead, New York 11901

Attorney for Defendant:

GEORGE H. DUNCAN, Esq.

One Suffolk Square

Suite 500

Islandia, New York 117493

Ralph T. Gazzillo, J.

On July 21, 2004, the defendant was arraigned on the above-captioned indictment and thereby charged with two (2) counts of Murder in the Second Degree. Six (6) plus months thereafter, on February 2, 2005, he pled to Manslaughter in the First Degree in exchange for the Court's promise of a determinate sentence of fourteen (14) years incarceration and in full satisfaction of the indictment. That plea was offered in the presence of the defendant's prior attorney as well as his family.

As reflected by the Clerk's file, the plea that was accepted over a year ago followed the better part of a dozen conference dates. As is also reflected by the file, this matter has been calendered for sentencing approximately two dozen times since the plea, the first four of which preceded the entry of new defense counsel. [*2]

By Notice of Motion, the defense has now submitted an application seeking an order permitting the defendant to withdraw his guilty plea. The basis for the motion is, essentially, allegations that the plea was involuntary. The application, which is opposed by the prosecution, is decided as follows:

ISSUES PRESENTED

The claimed involuntariness of the plea stems from allegations that the attorney/client relationship between the defendant and prior counsel had "broken down" In support, substituted counsel alleges the defendant has indicated that his previous "attorney had not prepared the case in any way and furthermore had failed to fully communicate with" him. Somewhat relatedly, and under the banner of "Ineffective Counsel," his present attorney alleges prior counsel received a sparse amount of discovery pre-plea, and no hearings were conducted.[FN1]

Additionally, new counsel contends the defendant and his family were told by the original attorney that the matter would not proceed to trial without payment of his entire fee. Counsel further alleges that the"only reason [the defendant] pled guilty was that he could not afford to go to trial."

Furthermore, the incoming attorney speculates that medication the defendant was taking undermined his knowing and voluntary participation in the plea proceedings.[FN2]

Finally, counsel notes that while the defendant's previous attorney did request a review of the Grand Jury proceedings minutes, he did not make "a specific request or request for re-inspection" targeted at determining whether the Grand Jurors received a justification instruction.

LAW

A plea serves many purposes, among which is finality. People v. Alexander, infra. Indeed, and as aptly underscored within the prosecution's opposition papers, a plea of guilty typically indicates the end of a criminal case, and not the gateway for additional litigation. People v. Alexander, 97 NY2d 482 (2002); People v. Green, 75 NY2d 902 (1990); People v. Taylor, 65 NY2d 1 (1985). These and other significant considerations would be frustrated if applications to vacate pleas were granted off-handedly and merely for the asking. See, e.g., People v. Taylor, supra. Quite obviously, there are occasions when such motions should be granted. However, of all those who might determine the merits of any such application, the trial judge has a unique [*3]perspective and is therefore typically best able to determine whether a plea was knowingly, voluntarily as well as intelligently entered, and therefore should remain undisturbed. People v. Seeber, 4 NY3d 780 (2005); People v. Alexander, supra.

In order to determine applications such as this, there is no universal, one-size-fits-all, cookie-cutter formula. There are, however, a number of criteria which may be generally applicable to most circumstances. As a starting point, "an allocution should be read with the aid of common sense, and without dwelling unduly on technicalities. . . . Often . . . this rule will lead courts to uphold guilty pleas, even where the allocution is tainted by a minor omission, or a trace of equivocation." People v. Seeber, supra, 4 NY3d at 982 (Smith, J., dissenting) (citations omitted). Most lay onlookers, any person familiar with such proceedings, and even the rightness law (see, e.g, People v. Parker, 85 AD2d 565 [1st Dept 1981]) readily recognize that most any defendant entering into a negotiated plea is under emotional pressure. Indeed, the mere fact that a person is emotionally distraught has been held as an insufficient basis for vacating a plea. People v. Alexander, supra. Similarly insufficient is the coercive effect of family pressure. People v. Lewis, 46 NY2d 825 (1978); see also, People v. Flakes, 240 AD2d 428 (2d Dept 1997).

Conversely, the presence of certain facts will add to a plea's vitality. For example, one such factor is a finding that there had been protracted negotiations prior to the plea proceedings. The logic is obvious: During the negotiation period the defendant is afforded a sufficient opportunity to weigh the plea's merits versus a trial's hazards. See, e.g., People v. Fiumefreddo, 82 NY2d 536 (1993)(plea followed months of negotiations). Similarly, while it is hornbook law that there is no catechism for a plea, an extensive colloquy will also add support. Ibid. The defendant's prior experience with the criminal justice system may also be among the decisive factors. People v. Alexander, supra. The opportunity to readily confer with counsel, as well as the absence of the defendant's need to have questions repeated have also been considered as indicative of a righteous plea. See, e.g., People v. Seeber, supra. Additionally, where there are post-plea claims of coercion, they can often be refuted by specific, contrary denials during the plea. See, e.g., People v. Anthony Bello, ___ AD3d ___, NYLJ 11-4-05, p. 26, col.1 (1st Dept); see, also, People v. Anthony Baston, ___AD3d ___, NYLJ 2-13-06, p. 39, col. 6 (2d Dept).

When presented with allegations that a defendant was at a disadvantage due to medication, such contentions will be undercut by contradictory evidence within the record. People v. Dunbar, 260 AD2d 644 (2d Dept 1999). The defendant's apparent understanding of the proceeding and the absence of any contrary exhibitions may be determinative. See, e.g., People v. Kessler, 5 AD3d 504 (2d Dept 2004); People v. Stone, 303AD2d 782 (3d Dept 2003); People v. Rodriguez, 302 AD2d 317 (1st Dept 2003). Moreover, the trial judge's recollection of the defendant's lucidity is also a factor to be given appropriate weight. People v. Hamm, 17 AD3d 105 (1st Dept 2005); People v. Frazier, 5 AD3d 288 (1st Dept 2004); People v. Settles, 2 AD3d 349 (1st Dept 2003); People v. Rodriguez, supra.

Finally remains the issue of ineffective counsel. In order to prevail on contentions such [*4]as raised within the instant application, a defendant is saddled with the burden of demonstrating:

"the absence of strategic or other legitimate explanations

for counsel's failure to request a particular hearing. Absent

such a showing, it will be presumed that counsel acted in

a competent manner and exercise professional judgement

in not pursuing a hearing."

People v. Rivera, 71 NY2d 705, at709 (1988).

This rule has been held equally applicable to pleas. See, e.g., People v. Coats, 195 AD2d 519 (2d Dept 1993). Additionally, a hindsight critique of another attorney's strategy is often a resort to supposition and conjecture; as such, and, without the other counsel's input, it is rarely fruitful. Ibid. Lastly, claims of ineffective counsel are further undermined where the attorney negotiated an advantageous plea agreement. People v. Kessler, supra; People v. Chestnut, 188 AD2d 480 (2d Dept 1992); People v. James White, ___ AD3d ___, NYLJ 2/6/06, p. 30, col. 3 (1st Dept).

ANALYSIS

Juxtaposing these concepts to the facts of the instant matter, the Court finds the defendant's application lacks sufficient factual or legal support for the relief requested. In reaching this determination, it initially merits noting that the undersigned was a first-hand witness to the proceeding as well as a participant, and as such privy to many of its nuances not captured by the cold, naked record. See, People v. Seeber, supra,; People v. Alexander, supra. Secondarily, but somewhat relatedly, the undersigned, having the on as well off the bench benefit of virtually thousands upon thousands of pleas, finds the instant defendant's conduct and responses during the proceeding to be neither extraordinary nor unprecedented. Thirdly, and as explained in greater detail below, even a detached, objective view of the proceeding through the lense of the controlling law and common sense leads to the conclusion that the plea was entered into knowingly, voluntarily, and intelligently. Moreover, individually and collectively, none of the defense's contentions disturb this result; similarly, the defense has not provided any controlling case or cases which require the relief requested.

Admittedly, the defendant was somewhat distraught during the plea. That is, of course, far from unusual or remarkable; nor, is it a sufficient sole basis to vacate a plea. People v. Alexander, supra. First of all, during a plea, a defendant must discard the security and mighty protection of the presumption of innocence. Secondarily, the defendant admits what has typically been steadfastly denied. And, oftentimes, the admission is exchanged for an agreement to receive a considerable period of incarceration. This is by no means an enviable position and, not surprisingly, a defendant's plea - the anticipated final moment of the litigation - is the moment of truth, and often a moment of stress, anxiety and, occasionally, high drama. [*5]

The fifth page of counsel's affidavit contains three (3) exchanges between the Court and the defendant as evidence of the defendant's equivocation. It merits noting, however, that while his answers demonstrate some hesitation, the final answers are not inconsistent with a voluntary plea. Moreover, that small portion of the entire proceeding is dwarfed by the balance. Indeed, the entire proceeding fills twenty-two (22) pages. The portions selected by counsel, in total, fill less than a half page. Additionally, even if, arguendo, the portions selected by counsel are considered equivocal, the overwhelming balance is not. And, as noted above, a trace of equivocation is not fatal to a plea. See, People v. Seeber, supra.

For example, the following excerpts clearly demonstrate the defendant's appropriate, consistent, quick, crisp, and unequivocal answers, thereby demonstrating his understanding, knowing, and voluntary participation in the process:

At page 4 of the stenographic transcript of the plea (after the defendant was sworn by the Court): THE COURT: Son, I'm going to ask you a series of questions.

If there is anything you don't understand, by all means you let me

know. Anytime you want to speak to me or your attorney, by all

means you let me know. Okay?

THE DEFENDANT: Yes .

Thereafter, same page:

THE COURT: The alternative, you can go to trial for this.

THE DEFENDANT: I'm taking a plea.

THE COURT: Do you read and write English?

THE DEFENDANT: Yes.

At page 5: THE COURT: Have you discussed this matter with your attorney,

. . . , who stands besides you?

THE DEFENDANT: Yes. THE COURT: Have you had enough time to discuss it with him as

well as anyone else you care to speak with? [*6]

THE DEFENDANT: Yes. THE COURT: Are you satisfied in the manner which he has

represented you in this case?

THE DEFENDANT: Yeah.

At pages 5 to 7:

THE COURT: You should be. Do you understand by pleading guilty

to a charge, that is the same as if you had gone to trial and found

guilty of that charge?

THE DEFENDANT: What? THE COURT: Do you understand by pleading guilty to a charge,

that is the same as if you had gone to trial and been found guilty of that

charge?

THE DEFENDANT: Yes. THE COURT: Do you understand by pleading guilty, you are giving

up or waiving a number of very important rights including but not

limited to your right to a trial by jury or the court whichever you prefer. Your right to have the prosecution produce evidence and witnesses and

to prove your guilt beyond a reasonable doubt. Your rights to cross-

examine those witnesses. And, if you wanted to, your rights to stand

silent or to testify in your own behalf or to call witnesses or submit evi-

dence on your own behalf. Do you understand by pleading guilty this

morning, you are up or waiving each and every one of those rights?

THE DEFENDANT: Yes. THE COURT: In addition to those rights, sir, you have the absolute right

to appeal the criminal conviction to a higher court than this and have that

court review your plea and sentence as well as any prior rulings which

may or may not have been made in this case. As part of this plea agree-

ment, however, in exchange for my conditional promise regarding the pro-

posed sentence, you will be giving up or waiving most of your appellate

rights. Have you discussed this with your attorney, and do you under-

stand this?

THE DEFENDANT: Yes. THE COURT: Are you entering this plea bargain including the waiver

of your right to appeal, voluntarily and of your own free will?

THE DEFENDANT: Yes.

At pages 9 to 12:

THE COURT: He (the defendant's attorney) also explained post-

release supervision I presume, also?

THE DEFENDANT: Yes. THE COURT: Based upon the conference I had with your attorney and

the prosecutor as well as what has been alleged about this case and what

I have been told thus far, it's the conditional promise of this Court you

be sentenced in the fashion indicated. Again, essentially, 14 years deter-

minate incarceration as well as appropriate release - post-release super-

vision. Do you understand that?

THE DEFENDANT: Yes. THE COURT: Do you understand by pleading guilty, you will be

admitting a serious crime, a felony. Should you be convicted of

another felony named in the Penal Law within the next ten years,

excluding any time you're incarcerated, any judge for such future

conviction may be absolutely required to give you enhanced or

additional punishment because of this felony conviction. Do you

understand that?

THE DEFENDANT: Yes.

THE COURT: I must further advise you that this sentence promise

is conditional. That means, at the time of sentence, I will be provided

with a pre-sentence report and perhaps additional information about

you as well as your alleged involvement in this matter. If, after reviewing

all the relevant information I am prepared to impose the sentence I

promised, I will. If, however, there is something in the information I

receive which tells me that I cannot in good conscience keep my promise,

I shall permit you to withdraw your plea of "Guilty." and reinstate your

plea of "Not Guilty," and the case will proceed to trial. Do you under-

stand that? [*7]

THE DEFENDANT: Yes. THE COURT: Additionally, the promise I made to sentence you in themanner I indicated also depends largely upon you. What I mean by that,

if between now and the date you are sentenced you feel to cooperate with

the Department of Probation, fail to appear on the sentence date or any

date adjourned for the purpose of sentence or so much as even just get

yourself arrested, I will no longer be compelled to keep my promise. What this means, if you fail to cooperate with probation or miss a court

date or get arrested, No. 1, I will not be bound by my promise, and No. 2,

I will not permit you to withdraw your plea. And, No. 3, I will sentence

you to any appropriate sentencing including, if it's appropriate, up to 25 years in jail. The absolute maximum allowed by law. Furthermore, I will sentence you even if you aren't here on the date of sentence. Do we

understand each other?

THE DEFENDANT: Yes.

THE COURT: Other than the promise I placed upon the record, has

anyone, myself, your lawyer, the prosecutor, the police, or anyone

else made any promises to you?

THE DEFENDANT: What?

THE COURT: Any other promises been made to you?

THE DEFENDANT: No.

THE COURT: Are you pleading guilty because you are, in fact, guilty?

THE DEFENDANT: Yes. THE COURT: Any reason why I should not accept this plea from you this afternoon?

THE DEFENDANT: No.

At page 20:

THE COURT: Your action did, in fact, cause the death of that

person, didn't it?

THE DEFENDANT: Yes. [*8]

At page 21: THE COURT: As I advised you, once a plea of "Guilty" is entered,

later on it can't be withdrawn. That being noted, sir, how to you

plead to the crime of Manslaughter the First Degree, a class B like

in boy felony, "Guilty" or "Not Guilty"?

THE DEFENDANT: Guilty.

Not only do these exchanges demonstrate the defendant's knowing, active participation in the process, this collection of his unequivocal responses is also totally inconsistent with the defense's clearly speculative allegation that the defendant was impaired by medication. That contrast also undermines the merits of the instant application. See, e.g., People v. Dunbar, supra. Indeed, as readily may be recognized, a number of the questions put to the defendant are lengthy and involve somewhat complex legal issues. His unequivocal responses indicate his understanding (as well as his previous attorney's anticipatory preparation and explanations). Such participation, of course, adversely impacts upon the defendant's arguments for nullification of his plea. See, People v. Kessler, supra; People v. Stone, supra, People v. Rodriquez, supra. Finally, both then and now, the undersigned remains convinced that this defendant was lucid. Those observations, of course, also weigh against vacating the plea. See, People v. Hamm, supra; People v. Frazier, supra; People v. Settles, supra: People v. Rodriguez, supra.

Additionally, and contrary to the defendant's most recent contentions, the italicized questions and his sworn responses thereto clearly indicate the following: 1) he had sufficient time to discuss the plea with his attorney and anyone else he wished:

2) he was satisfied the manner in which his attorney had represented him;

3) he understood the rights he was waiving;

4) he was entering into the plea, including his right to appeal, voluntarily;

5) he was pleading guilty because he was in fact guilty; 6) towards the very end of the Court's colloquy he rejected an additional opportunity to supply any reason why the plea should not be accepted and,7) notwithstanding a warning of the plea's finality, he offered his plea of guilty.

Also worth noting is a pre-plea, unsolicited letter the defendant sent to the undersigned. In that letter, dated December 12, 2004 and months before the plea, he attempted to persuade the [*9]undersigned "that a (sic) justice will be served and the cost and means in which they can be achieved will be minimal if [the undersigned] will allow [him] to receive a determinate sentence of seven (7) years." That letter underscores his pre-existing desire to plea-bargain and avoid a trial. It does not, however, so much as infer any dissatisfaction with his attorney or the progress of the case. Similarly, it fails to supply any support for a claim that his mental processes were somehow impaired by medication.

And, of course, the written words of the defendant stand in direct contradiction to his attorney's contention repeated at the top of page 2 above that the "only reason [the defendant] pled guilty was that he could not afford to go to trial." Clearly, before he had been coached by "jail house lawyers,"[FN3] he had weighed the merits of a plea against the perils of a trial and had selected the former.

Finally, and as the record discloses, this plea came after numerous conferences and over six (6) months after his arraignment.[FN4] That undisputable and substantial length of time buttresses the prosecution's opposition to vacating the plea. See, People v. Fiumefreddo, supra. The plea followed a protracted colloquy, wherein he had the constant presence and availability of counsel, factors also deserving of appropriate weight. Ibid; People v. Seeber, supra. Similarly of note is the fact that his criminal record, as delineated by his pre-sentence investigation, reveals he is no stranger to the criminal courts. See, People v. Alexander, supra.

Focusing now on the defenses claim of ineffective counsel, it is appropriate to begin with the affirmation offered in support. As noted therein, the defendant's previous attorney "is a well known and highly respected attorney in the legal community . . ." (Affirmation, p. 6). In the instant matter, following months of appearances, that attorney negotiated a very advantageous plea arrangement which eliminated his client's exposure to much more severe incarceration. That fact also undermines any claim of ineffective counsel. See. People v. Kessler, supra; People v. Chestnut, supra; People v. White, supra. As to his alleged failure to more aggressively investigate the prosecution's file, clearly that is hindsight and an argument of questionable value. See, e.g., People v. Coats, supra. Clearly, the results of his investigation produced sufficient information and evidence to justify counseling the defendant against a trial. Presumably, the attorney acted in a competent manner. Ibid. Moreover, as indicated above, the defendant, under oath, swore he was satisfied with his attorney's performance. That sworn statement refutes his contrary post-plea contention. See, e,g., People v. Bello, supra; People v. Baston, supra. [*10]

In sum, the defense has failed to adequately support issuance of an order granting the relief requested. Indeed, as indicated, the facts of this matter as well as the relevant law require its denial.

Moreover, and guided by a recommended common sense approach (see, People v. Seeber, supra), the undersigned offers the following observation: This plea was made in open court, in the presence of experienced counsel, his immediate family, the general public and following a detailed, protracted, exhausting colloquy.[FN5] If, under such circumstances, the court and the law cannot rely upon his sworn answers, then perhaps the oath, if not the entire process, should be discarded.

Finally, the Court has determined that the defendant's contentions regarding the Grand Jury proceedings are without merit.

The foregoing constitutes the decision and order of the court.

In reaching this determination, the Court has received and reviewed the following:

1) Clerk's Case File; 2) Defendant's Notice of Motion (one [1] page), annexed affirmation of George Duncan, Esq. (nine [9] pages) as well as annexed exhibits "A" through "K"; 3) Affidavit of A.D.A. Michael Blakey (four [4] pages) and annexed memorandum of law (five [5] pages);

4) Defendant's Sur-Reply "Motion" (six [6] pages);

5) Defendant's letter to the undersigned dated 12-12-05 (one [1] page);

6) Grand Jury Minutes, People v. Pedro Collazo, Indictment No. 1690-2004.

Dated:______________________ _________________________________

RALPH T. GAZZILLO, J.C.C. Footnotes

Footnote 1: Apparently discovery demands as well as requests for consent to at least six (6) hearings had been served upon the prosecution. These apparently were abandoned as the case progressed.

Footnote 2: The attorney states, "While there is no way of positively knowing" the effect of certain drugs he was taking, he claims the record indicates that many of the "potential" side effects of the drug were being experienced by the defendant. (Ultimate page, counsel's supporting affirmation).

Footnote 3: See stenographic transcript of proceedings, March 7, 2005, p. 4.

Footnote 4: It bears noting that this period of time was beyond the typically sufficient allowance historically allotted state-wide for such cases by the Office of Court Administration. This observation is offered purely as a parenthetical, and is solely provided to contrast the instant matter's progress against the resolution of most other cases. Perhaps more importantly, is serves to demonstrate that the instant plea was by no means rapidly obtained.

Footnote 5: For the sake of completeness, it should be noted that the length and detail of the undersigned's questioning during the instant plea should not be taken as any indication that the proceeding was in any fashion uniquely significant or accompanied by extraordinary circumstances. To the contrary, and as is demonstrated somewhat daily, this plea followed the undersigned's typical, admittedly protracted, scripted series of questions. The object of that exercise is, of course, a plea that comports with the law.