People v Bridgeforth
Annotate this CaseDecided on July 26, 2006
Supreme Court, New York County
People of the State of New York
against
James Bridgeforth, Defendant.
1262/2003
Gregory Carro, J.
On January 7, 2004 this defendant was convicted on a guilty plea of criminal possession of a weapon in the third degree, a class D violent felony offense, and sentenced to a determinate term of imprisonment of five years and post release supervision for a period of five years.
On February 28, 2006, he served this pro se motion to vacate the judgment on the ground that it was obtained in violation of right to effective assistance of counsel (CPL 440.10 [1][h]). In it he argues (1) that defense counsel decided to forgo a motion to suppress tangible property and a defense in order to pursue plea negotiations without his knowledge or consent; (2) defense counsel failed to assert the defendant's "psychiatric disorder" as an affirmative defense; and (3) defense counsel promised to file a notice of appeal, but did not.
In addition to the defendant's affidavit, the motion is supported by Exhibits A through F consisting of an affidavit by Mirtha Flores; a copy of the complaint he filed against defense counsel with the Departmental Disciplinary Committee, Supreme Court, Appellate Division, First Judicial Department (hereafter Disciplinary Committee), asserting the same claims advanced here; a letter to the defendant from defense counsel; a letter to the defendant from the Disciplinary Committee; an affidavit from James Bridgeforth, Sr.; an affidavit from Wanda Ortiz; and a petition protesting the "unjust legal council (sic)" received by this defendant, signed by eight individuals. The court has not considered the Flores, Bridgeforth, Sr. or Ortiz affidavits, as all were sworn to in March, 2006, after the date of service by mail recorded on the affidavit of service.
The People have submitted an affirmation in opposition to dismissal. It is their position that none of the claims pressed on the motion is meritorious. In addition to the supporting affirmation, the People have submitted six Exhibits, which include a copy of defense counsel's answer to the complaint filed with the Disciplinary Committee; an affidavit by Elizabeth Sanchez; a copy of the written statement the defendant made to the police on March 12, 2003 shortly after his arrest; a copy of the letter to defense counsel from the Disciplinary Committee closing the file on the Bridgeforth complaint with no further action; a transcript of the plea allocution on October 29, 2003; and a transcript of the sentencing proceeding on January 7, 2004.
The right to effective assistance of counsel is guaranteed by the Constitutions of the State of New York and the United States. To prevail on an ineffective assistance of counsel ground under the New York State Constitution, a defendant must demonstrate that he did not receive meaningful representation (People v Benevento, 91 NY2d 708 [1998]). When the conviction is [*2]based on 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 of counsel" (People v Ford, 86 NY2d 397, 404 [1995]). Under the Constitution of the United States, the defendant must show that counsel's performance was deficient and that the deficiency prejudiced the defendant (Strickland v Washington, 466 US 668 [1984]).
Turning first to the New York State Constitution, were the defendant convicted after trial of criminal possession of a weapon in the third degree, he would face a determinate term of imprisonment of five to seven years. The evidence against him was compelling. The defendant was stopped by police at 6:30 in the morning and searched. A pistol loaded with seven rounds was recovered from his waistband. Shortly after he was arrested, he made a statement admitting that he was carrying the gun for protection.
Success on a motion to suppress the weapon was uncertain at best. The defendant alleges that he was illegally stopped and searched based on an anonymous telephone tip that he was a drug dealer in possession of drugs. However, the People allege that the police acted on information provided by an informant known to the police. If the informant was reliable and had an adequate basis of knowledge, his information would have justified a forcible stop and frisk (see People v Martinez, 80 NY2d 444 [1992]).
The defendant invokes People v Ferguson (114 AD2d 226 [1st Dept 1986]), incorrectly, for the rule that defense counsel is ineffective if he fails to move for a Mapp hearing when a defendant is charged with possessory crimes. However, in Ferguson, the defendant was stopped solely because he was carrying what appeared to the officers to be a woman's shoulder bag, and searched, "highly questionable" actions, according to the Appellate Division. The Court found defense counsel ineffective, and remanded the matter for a Mapp hearing, because there was a strong likelihood that but for his failure to seek a Mapp hearing initially, the defendant would not have found himself convicted of possessing a gun.
Here, by contrast, the likelihood of succeeding on the motion to suppress was slim, a fact which, according to his answer to the Disciplinary Committee, defense counsel realized after discussions with the assistant district attorney. His decision to obtain a favorable plea agreement rather than pursue a weak suppression motion was a legitimate tactical choice (see People v Garcia, 75 NY2d973 [1990]). Under this and all the other circumstances of this case, a plea bargain that provided for the minimum possible sentence was advantageous.
Nothing in the record casts doubt on the effectiveness of counsel. For reasons stated above, defense counsel cannot be faulted for pursuing plea negotiations instead of litigating issues relevant to the stop and frisk. Both the prosecutor's affirmation and defense counsel's answer to the complaint contain detailed accounts of the plea negotiations which began shortly after defense counsel was retained in April, 2003, and continued until October. Defense counsel was initially confronted with an intransigent prosecutor who, due to the strength of the evidence against the defendant and his prior violent felony conviction, refused to change her recommendation of five to seven years..
Defense counsel attempted to use the defendant's alleged psychiatric disorder to secure an offer. However, he was forced to abandon this course when he was unable, despite examinations by two different mental health professionals, to obtain a diagnosis which would mitigate the defendant's culpability for the offense. He managed however to convince the prosecution to recommend the minimum possible sentence. The defendant was clearly delighted with this [*3]result. At the sentencing, when asked if he wanted to say anything, the defendant stated "Yes. I would like to thank my attorney ... for believing in me, helping me out with myself and my situation ... ."
The defendant complains that defense counsel made the decision to engage in plea negotiations without his knowledge or consent, and that he had no idea until he obtained his case file from defense counsel in 2006 that no motions had been made. In his answer to the Disciplinary Committee defense counsel vehemently denied that he acted unilaterally. According to defense counsel, the defendant expressed a preference for a plea bargain over trial at their first meeting in March, 2003. After learning the facts and circumstances surrounding the stop and frisk from the assigned assistant district attorney, defense counsel discussed with the defendant the slender odds of obtaining suppression or an acquittal at trial, and the defendant agreed that plea negotiations were the best option.
The court's notes do not support the defendant's claim that he was unaware of defense counsel's strategy. Those notations indicate that the case was sent to Part 42 on April 30, 2003 for pre-trial motion practice, and that on April 30 and on each adjourned date thereafter until October 29, 2003, defense counsel requested, and the court granted, deferral of motion practice for purposes of plea negotiations. All these requests were made in open court and in the defendant's presence.
The record belies the defendant's claim that no one told him until he received defense counsel's file that defense counsel failed to present a defense to the charge. During the plea allocution, the court asked the defendant if he understood that by pleading guilty he was "giving up your right to a trial, where the People have to prove the evidence against you beyond a reasonable doubt, call witnesses, and present evidence against you. You are giving up your right to confront witnesses, challenge evidence by your attorney, or your right to testify at trial or present witnesses." The defendant answered unequivocally "yes."
The defendant also alleges that defense counsel failed to use his psychiatric disorder as an "affirmative defense." Under the circumstances of this case, the defendant's conclusory claim that he is suffering from a psychiatric disorder which impaired his judgment at the time of the offense, unsupported by any other evidence, is not sufficient to establish that fact (see CPL 440.30 [4][b]).
Next, the defendant alleges that defense counsel failed to file a notice of appeal after the defendant instructed him to do so. Again, defense counsel denies this allegation.
Even if true, however, counsel's omission does not entitle the defendant to the relief he requests on this motion.
A court has the power to vacate a judgment of conviction under CPL 440.10[1][h] when the "judgment was obtained in violation of a right of the defendant under the constitution of this state of the United States." Failure to file a notice of appeal does not affect the judgment of conviction, which is completed by imposition and entry of the sentence (CPL 1.20 [15]; People v Bachert, 69 NY2d 593 [1987]). Therefore, the court has no power to vacate judgment on this ground.
A defendant who wants to appeal a judgment of conviction to an intermediate appellate court, but has failed to file a notice of appeal within the prescribed time due to improper conduct of his attorney, must move within one year and thirty days from imposition of sentence for an extension of time for taking an appeal (CPL 460.30). Having failed to make a timely motion, the [*4]defendant's only recourse is a motion for coram nobis in the Appellate Division (People v Bachert, 69 NY2d 593, supra). The court notes, however, that the defendant has not demonstrated here that there is an appealable issue.
Turning next to the Constitution of the United States, the defendant has failed to show that defense counsel's performance was deficient in any way. Therefore, he cannot prevail on this prong of his motion (see Strickland v Washington, 466 US 668, supra]).
For these reasons, the motion to vacate the judgment is denied in all respect.
DATED: July 26, 2006
New York, NY ____________________________
JUSTICE, SUPREME COURT
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