People v Brujan

[*1] People v Brujan 2006 NY Slip Op 51754(U) [13 Misc 3d 1209(A)] Decided on September 13, 2006 Supreme Court, Bronx County Fabrizio, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2006
Supreme Court, Bronx County

The People of the State of New York

against

Hector Brujan, Defendant.



NO.: 843/00

Ralph Fabrizio, J.

The defendant's motion, pursuant to CPL §440.30, to set aside the sentence is denied.[FN1] The defendant pled guilty to criminal possession of a weapon in the third degree (P.L. §265.02[3]) before the Honorable Ira Globerman on March 7, 2000. He was represented by a privately retained attorney, Justin Levine. At the time of the plea, the defendant was promised a sentence of probation; the defendant agreed to delay imposition of that probationary sentence until after he had spent six months in jail, and then participated for about a year in a counseling program aimed at addressing concerns about anger management as well as psychological problems. The defendant was told that, in addition to participating in the counseling program, he had to return to court on all dates following his release from jail, and not be arrested for any new crimes prior to the sentencing date. Justice Globerman warned the defendant that if he violated any of these conditions, he could be sentenced to seven years incarceration instead of probation.

After entry of his plea, the defendant remained in the custody of the New York City Department of Correction. Justice Globerman ordered a psychiatric examination pursuant to CPL § 390.30(2), in order to determine a proper program for the defendant to attend. In the request, the judge noted that the defendant "reports hearing voices."

The defendant was released from jail on July 26, 2000, and was sent to a counseling program. He failed to show up for court as required on October 3, 2000. When the defendant returned on October 17, 2000, he was remanded for one week. On October 20, 2000, Justice Globerman once again paroled the defendant to his program.

The defendant failed to appear for his very next scheduled court appearance on November 6, 2000, and a warrant was ordered for his arrest. The defendant was subsequently taken into custody in Rhode Island, after being arrested for another crime in that state. He signed a written waiver of extradition from Rhode Island on February 7, 2002, and appeared in Bronx County Supreme Court on February 14, 2002. He was represented by a newly retained attorney, [*2]Samuel Viruet. Justice Globerman ordered an updated evaluation from the department of probation, prior to pronouncing sentence. Defense counsel submitted an extensive and detailed presentence memorandum, in which he asked the Court not to sentence the defendant to prison. In the alternative, the attorney asked that the defendant be allowed to withdraw his guilty plea. On July 26, 2002, Justice Globerman sentenced the defendant to two and one-half to seven years in state prison. He did not appeal the plea or the sentence. His request for an enlargement of time to file his appeal was denied by the Appellate Division, First Department on December 2, 2004, nearly two and a half years after sentencing.

The defendant now seeks to vacate the sentence on the ground that he was "incapable of understanding or participating in his sentencing by reason of mental disease or defect." He also seeks to vacate the sentence on the ground that the Court failed to, sua sponte, order a psychiatric examination pursuant to Article 730 of the CPL at the time of sentence. Finally, he argues that the sentence should be vacated because his attorney was ineffective in failing to request such an examination prior to sentencing. Annexed to the defendant's motion are medical records, as well as an affidavit from the defendant himself.

At the outset, the defendant's motion to vacate the sentence must be denied for a very basic reason the defendant has not provided the sentencing minutes. He has provided this Court with a transcript of the plea proceedings. But, since the gravamen of defendant's claim appears to be addressed to his mental condition at the time of the sentence, the plea minutes are irrelevant. It is, of course, the defendant's obligation to prepare a proper record to support allegations raised in a post-judgment motion. People v. Roman, 222 AD2d 269, 270 (1st Dept. 1995); see also, People v. Olivo, 52 NY2d 309, 320 (1981). Since the record is inadequate to support the defendant's claims with respect to the sentencing proceedings, the motion to vacate the sentence is denied for this reason. People v. Roman, 222 AD2d at 270.

While the defendant's notice of motion indicates that he is only seeking to vacate the sentence, his attorney's affirmation makes repeated references to an application to vacate the plea as well. In support, the defendant argues that he was also possibly unfit at the time the plea was entered. The People have responded to that argument, and therefore this Court will also address that request.

Defense counsel also makes repeated references to the defendant being mentally incompetent at the time of a violation of probation hearing pertaining to this case. But, the defendant was never sentenced to probation on this case, and therefore there would have been no such hearing. In addition, the defendant has not provided this Court with any minutes connected with any purported violation of probation hearing. To the extent that the defendant's argument can be read to state that he was unfit to address the issue of his having failed to come back to court for more than a year, an issue relevant to sentencing, and that his being unfit to address that issue meant that he unfairly received an enhanced sentence, this Court will address that claim as well.

The motion to vacate the judgment, plea and/or sentence, is denied for several reasons. First of all, it is procedurally barred. The court file contains many of the psychiatric records defendant has provided in his current motion. His attorney at sentencing, Mr. Viruet, provided those records to Justice Globerman in his presentencing memorandum. One of the applications made to Justice Globerman was to vacate the guilty plea. That application was obviously denied, [*3]since the Court below sentenced the defendant to state prison. And, the documents in the court file conclusively demonstrate that Mr. Viruet, Mr. Levine, and Justice Globerman were all well aware of defendant's psychiatric history and problems. In fact, the plea minutes submitted disclose that the defendant's psychological problems had been discussed for several months prior to the entry of the plea. Moreover, Mr. Viruet's post-sentence memorandum details facts about defendant's activities after he failed to appear in court on November 6, 2000. He was able to present defendant's reasons for not appearing. In fact, the defendant candidly admitted leaving New York in November 2000 and relocating to Rhode Island. He provided an affidavit from the woman he lived with in that state. Therefore, the record available to this Court demonstrates that the defendant provided meaningful information to Justice Globerman relevant to the question of whether he would receive an enhanced sentence. see People v. Valencia, 3 NY3d 714 (2004); People v. Hicks, 98 NY2d 185 (2002); People v. Peguero, 7 AD3d 925 (3rd Dept. 2004). Thus, there was a substantial record to be reviewed on appeal in connection with the claims raised in the defendant's post-judgment motion. The defendant, however, did not ever file an appeal. Given the fact that there was a record to review on direct appeal that directly and adequately dealt with the claims the defendant currently raises, and given that the sentencing minutes would have presumably been provided to the appellate court as well, and given that the defendant failed to even perfect his appeal, this motion is denied. CPL § 440.10(2)(c); People v. Cooks, 67 NY2d 100, 104 (1986); see People v. O'Hanlon 13 AD3d 718, 719 (3rd Dept. 2004); People v. Pham, 287 AD2d 789, 790 (3rd Dept. 2001).Even though the defendant's claims are procedurally barred, and he has failed to provide the sentencing minutes, this Court nonetheless also denies the defendant's application on the merits. The defendant has a history of mental illness that dates back to 1996, four years prior to the entry of the plea. However, this fact alone would not have required Justice Globerman to have ordered a competency examination prior to accepting the plea, or prior to pronouncing sentence. A hearing, or even an examination pursuant to CPL article 730 is not required to be ordered solely because a defendant has a history of mental illness. People v. Morgan, 87 NY2d 878, 881 (2002); see also, People v. Alexander, 97 NY2d 482,486 (2002); People v. Barclay, 1 AD3d 705, 706 (3rd Dept. 2003). Indeed, "[a] defendant is presumed competent (citation omitted), and the court is under no obligation to issue an order of examination (CPL 730.10[2]) unless it has reasonable ground . . . to believe that the defendant was an incapacitated person' (citation omitted)." People v. Morgan, 87 NY2d at 880 (1995). In this case, there is nothing in the plea minutes that "casts doubt on the defendant's mental competency." People v. Provencal, 28 AD3d 400 (1st Dept. 2006). To the contrary, the minutes show that the defendant understood the crimes he was charged with, the crime he was pleading guilty to, and was able to assist his attorney that day.

For example, during the allocution Justice Globerman told the defendant he was being charged with having "something in your possession that it was against the law to have," and asked the defendant what that item was. The defendant replied, "a pistol." When the defendant added, "My wife had it," the judge asked the defendant "Whose pistol was it?" The defendant immediately replied, "Mine. I found it." In addition, the defendant was keenly interested in the parameters of the orders of protection issued for the different victims in the case. One victim, Madelyn Lopez, was to receive a "limited" order of protection, which required that the defendant refrain from assaulting, harassing, intimidating or threatening her, but would allow personal [*4]contact. As far as the other victims, Shantee Lopez and Crystal Brujan, the defendant was required to refrain from any and all contact. After the judge read the parameters of the different orders, defense counsel told the Court that the defendant wanted it to be clear that Madelyn Lopez was only receiving a limited order of protection, because she intended to visit the defendant at Rikers' Island, and Justice Globerman confirmed that the order provided that they could have contact. And, the minutes disclose that the defendant had repeated conversations with his attorney during the plea proceedings, not only about the parameters of the orders of protection, but about the meaning of the waiver of appeal the defendant agreed to, and potential collateral consequences of pleading guilty.

Thus, the plea minutes show that the defendant was completely lucid and coherent during his interactions with Justice Globerman. In addition, the defendant repeatedly indicated that he understood Justice Globerman's statements as well as the questions the judge posed to him. Thus, Justice Globerman did not, as the defense asserts, "improvidently" exercise his "discretion by failing to sua sponte order a psychiatric evaluation pursuant to Article 730." as there is no reason apparent to this Court on this record to even suggest that defendant might have been unfit to proceed or enter a guilty plea. People v. Snyder, 29 AD3d 310 (1st Dept. 2006); People v. Jordan, 21 AD3d 1039 (2nd Dept. 2005), appeal denied, 5 NY3d 883 (2005); see also, People v. Alexander, 97 NY2d at 486; People v. Jones, 25 AD3d 809, 810 (2nd Dept. 2006).

Defense counsel argues that, despite the record, the defendant was in fact not fit on the day of the guilty plea because he failed to take his medication that day. Curiously, however, the defendant's affidavit, annexed as an exhibit to the motion papers, makes no mention of his not taking medication at the time of the plea. Nor does it indicate that he was unable to understand what was happening at the time the plea was entered. The affidavit details the defendant's psychiatric problems during the period he failed to return to court, and at the time of the sentence. Thus, there is no sworn allegation of fact to substantiate this claim, and the application to vacate the plea for this reason must be denied. CPL §§ 440.30(1) and (4)(b). Significantly, though, even if this defendant had not taken his medication on the date of the plea, the plea minutes do not show that even this purported failure "so stripped him of orientation or cognition that he lacked the capacity to plead guilty." People v. Alexander, 97 NY2d at 486.

And, although the sentencing records are not part of the exhibits in this case, the record before this Court provides no basis to believe that Justice Globerman should have ordered a 730 exam prior to pronouncing sentence. Obviously, the judge and defense counsel were well aware of the defendant's psychiatric issues at the time of sentencing. The updated presentence report ordered in 2002 advised the Court that the defendant reported that he was still hearing voices. And, as noted, defense counsel filed a lengthy presentence memorandum which spoke in great detail about the defendant's past and then current psychiatric problems. Even though the record "indicates that defendant has some history of mental health difficulties and substance abuse, the record as a whole reflects no grounds to believe that defendant was incapable of understanding the proceedings against him due to mental disease or defect (citations omitted)." People v. Bennett, 30 AD3d 631 (3rd Dept. 2006). Indeed, since Justice Globerman was well aware of the defendant's problems, he was hyper vigilant in ordering an updated psychiatric assessment in aid of sentencing. The fact that the judge did not order a 730 exam only supports the conclusion that he had no reason to be concerned with the defendant's ability to sufficiently understand the [*5]proceedings and assist his attorney.

Finally, the defense counsels' failure to request a CPL Article 730 evaluation of the defendant either at the time the defendant pled guilty or prior to sentencing cannot be said to have deprived him of the effective assistance of counsel. First of all, the defendant has not provided affidavits from either of his attorneys detailing why they did not request such examinations, or explain why he could not reasonably obtain such affidavits. This alone provides a legal reason to summarily deny this portion of the motion See People v. Morales, 58 NY2d 1008 (1983); People v. Johnston, 292 AD2d 284, 285 (1st Dept. 2002); but see People v. Radcliffe. 298 AD2d 533 (2nd Dept. 2002). Despite this procedural lapse, this Court nonetheless finds that the defendant received effective assistance of counsel at both the plea and sentence proceedings.

A defense attorney is not required to request a competency examination or hearing where there is no indication that a defendant is not an incapacitated individual. People v. Courcelle,15 AD3d 688 (3rd Dept. 2005); People v. Barclay, 1 AD3d at 706. This is true even though the attorney is aware that the defendant is under the care of a psychiatrist, has a past diagnosis of a psychiatric problem, or is on psychiatric medication. See People v. D'Adamo, 293 AD2d 869 (3rd Dept. 2002); People v. Johnston, 186 AD2d 680 (2nd Dept. 1992). Even without an affidavit from counsel, the attorneys' reasons for not requesting competency examinations can be plainly inferred from the record that is available to this Court. As far as Mr. Levine is concerned, as indicated previously, the plea minutes plainly show that this defendant was able to understand the proceedings, and his responses to the Court's questions were rational and appropriate. Moreover, those minutes also indicate repeated communications between the defendant and Mr. Levine during the plea allocution. Thus, the defendant clearly understood what was said to him, the crimes he was charged with, the consequences of the plea, and Mr. Levine plainly had the ability to communicate with the defendant. Accordingly, there is nothing on the record to support a claim that a request by counsel for a 730 exam was warranted, or that one would have even been granted if requested.

Most important, though, the record indicates that both of the defendant's attorneys were well aware of the defendant's psychiatric issues, and felt that his medical condition was relevant only to the type of sentence the defendant received, and not to his fitness to proceed at either a plea or sentencing proceeding. In fact, a letter from Mr. Viruet to the New York State Department of Correction dated August 1, 2002, some five days after the defendant was sentenced, which is contained within voluminous records massed together as Exhibit "Q" to the defendant's motion, requests that the defendant receive "shock incarceration" and states that the defendant "has expressed to me full and complete compliance and cooperation with the Department of Correction in whatever requirements are deemed necessary." Nothing indicates a breakdown in communication with his attorney at the time of sentencing, or a lack of understanding on the defendant's part of the consequences of his being sentenced, because of any psychiatric problems.

Accordingly, the defendant's motion is denied in its entirety.

This opinion shall constitute the decision and order of the Court. [*6]

Dated: September 13, 2006________________________

Bronx, New YorkRalph Fabrizio, A.J.S.C. Footnotes

Footnote 1: "[S]ince defendant was provided with an adequate opportunity to present his claims by written submissions, including that of his new attorney" representing him on this motion, a hearing was not necessary to resolve the instant motion. See, People v. Pickett, 254 AD2d 25 (1st Dept 1998).