People v Holman

[*1] People v Holman 2006 NY Slip Op 50270(U) [11 Misc 3d 1058(A)] Decided on February 28, 2006 Supreme Court, Kings County Gerges, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2006
Supreme Court, Kings County

People of the State of New York,

against

Tyrone Holman, Defendant.



10428/94

Abraham G. Gerges, J.

The defendant, pro se, moves to vacate the judgment on the ground that defense counsel misrepresented the fact that he would receive "good time" credit if he pleaded guilty. By order dated February 28, 2005, the court conducted a hearing on the motion.

In deciding this motion, the court has considered the motion papers, the affirmation in opposition, the defendant's reply to the People's opposition, the defendant's motion to expand the record, the hearing minutes and the documentary evidence admitted at the hearing, the original trial record and the court file.

Background

On August 26, 1994, Michael Lilly and Ronald Dorsey, two truck drivers from Texas, were robbed by several individuals while their truck was parked on Bergen Street near Rochester Avenue, Brooklyn, New York. Mr. Lilly phoned 911 and within a few minutes a police car containing Police Officers Daniel Jackson and John Neckles arrived at the crime scene. Police Officer Jackson spoke with Mr. Lilly, who described the perpetrators as "blacks" one of whom was wearing a green shirt.

The police asked Mr. Lilly to enter the police car, which he did. Based on a hunch, the police drove until they reached Park Place and then turned into Park Place. As the police car approached 1544 Park Place, Mr. Lilly indicated that a group of people standing in front of the building were the perpetrators. The group began to run and entered 1544 Park Place. Police Officer Jackson directed Mr. Lilly to remain in the car and then exited the vehicle to follow the fleeing youths.

The police officers entered the building and heard footsteps climbing up the staircase. When the officers arrived on the third floor, they observed the defendant standing in front of Apartment 3B. The defendant had no shirt on, but had on pants and was wearing a chain with a "cross." Police Officer Jackson asked the defendant if he would remain at the scene, and the defendant consented. Police Officer Jackson asked Officer Neckles to get Mr. Lilly and bring him to the third floor. As Mr. Lilly was climbing the stairs, he stated that the defendant was one of the perpetrators.

The officers then arrested the defendant. The defendant requested that he be able to put on a shirt and grabbed a green shirt hanging in apartment 3B. As a result of a search of [*2]apartment 3B, the police seized three weapons, later identified as weapons used during the robbery, and jewelry, later identified as belonging to Mr. Lilly.

On September 14, 1994, an indictment charging the defendant with robbery and related charges was filed. On October 3, 1994, the defendant was arraigned and pleaded not guilty.

On January 2, 1995, trial of the instant indictment commenced. At trial both Mr. Lilly and Mr. Dorsey identified the defendant as one of the perpetrators. The defendant called Ms. Martha Joyner to testify. She testified that she lived in apartment 3C on the day of the incident, and had seen the defendant with a lady companion enter the building, and that sometime later the police came and arrested the defendant. She allegedly told the police that the defendant did not commit any crime.

On cross-examination Ms. Joyner was unable to state the month that this incident occurred and admitted she did not know the time that the crime had been committed.

On January 17, 1996, at 1:10 p.m., the court completed its instruction to the jury. The jury then had lunch, and at 2:10 p.m. sent a note requesting a rereading of the charges. At 3:10 p.m., the rereading of the charges was complete. At 3:30 p.m., the jury sent a note that they had reached a verdict. The jury convicted the defendant of all charges.

On June 24, 1996, the defendant was sentenced to a term of imprisonment having a minimum of 25 years and a maximum of Life. At that time, the court observed that it was very likely that the defendant had presented false testimony from a witness (presumably Ms. Joyner).

On May 7, 2001, the defendant's conviction was reversed by the Appellate Division because of the failure of the court to impose a sanction for a Rosario violation.[FN1]

On February 28, 2002, the court discussed a possible sentencing offer that the court would make over the government's objection. The court offered the defendant a sentence of 10-Life if he would plead guilty. On the record, defense counsel stated that he had told the defendant that there was a plea offer and said, "we have also explained it was our understanding that under the old law, an individual who went upstate got two thirds good time, which puts Tyrone very close to seeing a parole board." [Sic]. Then, the defendant asked for an adjournment because his mother was ill, and he wanted to discuss the matter with his family. The prosecution then stated that he had to bring his witnesses from Texas and needed to resolve certain scheduling issues as well as legal issues. The court then conducted a Sandoval hearing and an Antomarchi waiver allocution.

The prosecution also represented that the three guns admitted into evidence at the prior trial were destroyed, but the People had photographs of the weapons. The chain with the cross had been returned to the defendant's girlfriend, but a photograph of the defendant wearing the "cross" existed. The People also offered to call the defendant's girlfriend to testify about the "cross." Money found in the defendant's pants were given to the victims of [*3]the crime as proceeds of the crime. The defendant sought a sanction for lost evidence. The court reserved decision until the next scheduled court appearance.

After a discussion of the defendant's "gold tooth" (a matter extensively discussed and testified to in the original trial), the court adjourned the case until March 4, 2002.

On March 4, 2002, the defendant offered to plead guilty and accept the 10 to Life imprisonment offer. Over the objection of the prosecution, the court accepted the plea. No mention of the "good time" credit was made at this proceeding. The allocution of the plea indicates that the defendant was satisfied with his attorney's performance and that the plea was knowingly and voluntarily made. The plea minutes also indicate that there was pending a parole violation proceeding. The court informed the defendant that he may have to serve additional time if he was sentenced on the parole violation.

At the hearing ordered by the court, the People conceded that the defendant did not receive "good time" because he was serving a Life sentence.

On March 15, 2005, the defendant appeared before the Parole Board. At this appearance, the defendant admitted that he pleaded guilty because he was afraid of getting convicted of the crime. Also at the parole board hearing, it was pointed out that the defendant had eight tier 2 violations and one tier 3 drug violation most, if not all, of which were committed between the original sentence and the acceptance of the plea offer, particularly the tier 3 violation.

The Parole Board denied parole, because of the defendant's previous convictions, one of which was during a period of parole, the facts of this case and that the defendant's disciplinary record was "marginal" and included a serious drug infraction.

The defendant now claims that his counsel was ineffective because he misinformed him about his eligibility for "good time" credit.

Ineffective Assistance of Counsel-Plea

A defendant has a right under both the Federal [FN2] and State [FN3] Constitutions to effective assistance of counsel in the plea process. The Federal Constitution requires a defendant to prove that counsel's performance fell below an objective standard of reasonableness and prejudiced defendant.[FN4] Under the State Constitution, "a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the [*4]record casts doubt on the apparent effectiveness of counsel."[FN5] Where "a defendant, on the advice of counsel, has entered a plea of guilty and reaped the benefits of a favorable plea bargain which substantially limits his exposure to imprisonment, he has received adequate representation."[FN6]

In Hill,[FN7] the Unites States Supreme Court stated: "In other words, in order to satisfy the prejudice' requirement, the 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 [emphasis supplied]."

Thus, the defendant "must show" that if not for defense counsel's alleged deficiency there is a "reasonable probability" that he "would have insisted on going to trial."[FN8]

Most New York courts under New York law require that a defendant show that he would have insisted on going to trial if not for defense counsel's alleged error.[FN9] The Appellate Division, Fourth Department, has rejected this criterion under the State Constitution and held that the proper standard is meaningful representation.[FN10] Under the Appellate Division, Fourth Department's criterion "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 of counsel."[FN11]

In order to prove the defendant would have insisted on going to trial, the defendant must prove the factors that a defendant considers in accepting a plea would have led him to refuse to accept the plea absent the alleged wrong information.[FN12] Some of the factors that must be established at a hearing are the strength of the prosecution's case, the availability of [*5]a defense, the likelihood of success at trial, a comparison of the sentence promised with the potential incarceration should the defendant be convicted after trial, counsel's advice as to the reason to accept the plea bargain, and a reason why the defendant admitted committing the act.[FN13] There also must be objective facts supporting the defendant's allegation that he would not have accepted the plea absent the wrong advice.[FN14]

A defense counsel's affirmative misrepresentation of an important consideration in taking a plea meets the first prong of the Strickland test that defendant's attorney acted unreasonably.[FN15]

The court finds that there has been an affirmative misstatement by former defense counsel. However, the court finds that the defendant's testimony that absent the misrepresentation he would not have taken the plea is incredible, unworthy of any credence and tailored to meet constitutional requirements. This finding is based on the following:

1. The defendant's demeanor on the witness stand.

2. The defendant's conclusory testimony using words that were culled from this court's prior decision.

3. His statements to the Parol Board that the reason he accepted the plea was to avoid a trial and conviction.

4. The defendant is an interested witness who has a motive to lie.

5. The defendant testified that he did not know that the People would bring in the witnesses.[FN16] The minutes of the proceeding of February 28, 2002 clearly indicate that the defendant was present when the prosecution informed the court that they had made arrangements to have the complainants flown into New York.

6. The defendant's extensive criminal record.

Further, on balance, the objective facts do not support the defendant's testimony that absent the misrepresentation he would not have accepted the plea. In reaching this conclusion [*6]the court considered the following:

1. The government's case was strong. There were two eyewitnesses who identified the defendant as perpetrator; the stolen property was found in close proximity to the defendant; the defendant was wearing a cross that was similar to that worn by one of the robbers and when the defendant put on a shirt, he put on a green shirt similar to that of one of the perpetrators. As the trial court observed at sentencing, the defendant's witness was unworthy of belief. It took the jury less than two hours of deliberation to convict him of all crimes.

2. Notwithstanding the defendant's testimony at the hearing, the evidence at the defendant's trial indicates that he had no real defense and would have been convicted a second time.

3. The defendant received a favorable sentencing promise. The defendant was facing a potential 50 years to Life upon conviction, although he had previously received a sentence of 25 years to Life. In either event, his sentence of 10 years to Life was considerably lower than his prior sentence and much lower than that requested by the government. If the defendant was truly concerned about the possibility of parole, his sentence enabled him to appear before the Parole Board 15 years earlier than his prior sentence. In other words, the plea was extremely favorable and was made over the People's objection.

4. The defendant's wishful thinking that he would be paroled immediately if he accepted the plea offer is unrealistic. The defendant had one major Tier 3 violation, had numerous Tier 2 violations and had an extensive criminal record other than the instant crimes. It is highly unrealistic to believe that even had the defendant received "good time" credit that the Parole Board would have released him. The fact that with virtually the same information that the Parole Board would have had if the defendant was granted "good time" credit, the Board, in 2005, denied release to the defendant is a clear indication that they would have denied release two or three years earlier. Further, the court informed the defendant that his plea would constitute a parole violation and that he could potentially serve additional time. Nonetheless, the defendant accepted the plea offer.

5. The defendant's excuse for admitting guilt sounds hollow, especially since the defendant did not receive any promise that in fact he would be released, and the fact that he committed the instant crime while under parole supervision.

It is noted that in this court's decision of February 28, 2005, the court directed the defendant present evidence of the amount of good time he would have had if he were eligible. This is significant in light of his prison disciplinary violation which would have caused loss of "good time" credit. No such evidence was admitted.

In conclusion, the defendant has failed to prove that any of his constitutional rights, [*7]no matter how the defendant phrases them, were violated.

The motion to vacate the judgment is denied.

This constitutes the decision and order of the court.

The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal from this determination. This application must be made within 30 days of service of this decision. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted.[FN17]

E N T E R ,

J. S. C. Footnotes

Footnote 1: 283 AD2d 440 (2001).

Footnote 2: Hill v Lockhart, 474 US 52 (1985).

Footnote 3: Ford, 86 NY2d at 404 (1995).

Footnote 4: Hill, 474 US at 57.

Footnote 5: Ford, 86 NY2d at 404.

Footnote 6: People v McClure, 236 AD2d 633, 633 (1997).

Footnote 7: 474 US at 59.

Footnote 8: see also People v McDonald, 1 NY3d 109, 115 (2003).

Footnote 9: People v Atkins, 12 AD3d 376, 376-377 (2004); People v Ammarito, 306 AD2d 99, 100 (2003); People v Melio, 304 AD2d 247, 251-252 (2003), after remand 6 AD2d 552, 553 (2004); People v Rodriguez, 188 AD2d 623 (1992); People v Ahmetovic, 157 AD2d 489, 489-490 (1990).

Footnote 10: People v Bonilla, 6 AD3D 1059, 1060-1061 (2004).

Footnote 11: Ford, 86 NY2d, at 404; People v Hilken, 6 ADdD 1109, 1110 (AD 4th-2004).

Footnote 12: People v McDonald, 296 AD2d 13, 19-21 (2002) affd 1 NY3d 109 (2003).

Footnote 13: id.; see also the dissent in People v Pichardo, 1 NY3d 126 at pps. 132-133.

Footnote 14: Melio, 304 AD2d at 251-252; People v McKenzie 4 AD3d 437, 439 (2004, [evidentiary details]); see also United States v Benitz, 542 US 74, 84-85 (2004- listing such objective factors such as strength of government case, possible defenses, what defendant might gain by going to trial and defendant's confession to the crime); see People v Fernandez, 5 NY3d, 813, 814 (2005); cf People v Garcia, 19 AD3d 17, 22 (2005).

Footnote 15: People v Mc Donald, 1 NY3d 109 (2003).

Footnote 16: Hearing minutes June 9, 2005, p 14 line 6 - 9.

Footnote 17: 22 NYCRR § 671.5.