People v Knight

[*1] People v Knight 2006 NY Slip Op 51973(U) [13 Misc 3d 1224(A)] Decided on October 16, 2006 Supreme Court, Kings County Feldman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 16, 2006
Supreme Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK

against

Keith Knight, Defendant.



6602/94

Anne G. Feldman, J.

Defendant was convicted by separate jury verdicts on October 31, l995 and December l8, l995 for crimes committed on two occasions. Originally joined under a single indictment the charges associated with each incident were later severed. For the incident occurring on April 9, l994, defendant was convicted of two counts of burglary in the first degree and one count of robbery in the first degree and sentenced as a persistent violent felony offender to concurrent terms of imprisonment of 25 years to life. For crimes committed on July 25, l994, defendant was convicted of burglary in the first degree and sentenced to a term of imprisonment of 25 years to life to run consecutively to his earlier conviction. Defendant represented himself at both trials and as a result of his convictions defendant was found to have violated his parole stemming from an earlier conviction. Defendant's conviction was affirmed by the Appellate Division Second Department (People v Knight, 1 AD3d 379 [2d Dept 2003]) and leave to appeal to the Court of Appeals was denied (People v Knight, 1 NY3d 630 [2004]).

Defendant now moves pursuant to CPL §440.10 to vacate the judgment of conviction on the grounds of ineffective assistance of counsel. Specifically, defendant claims that he was not properly advised about the aggregate sentence to which he was exposed had he accepted the People's plea offers of ten years to life and later eight years to life. He contends that two successive attorneys failed to "correct his mistaken belief" that the seven years stemming from his parole violation would be added to the minimum term of the two separate proposed indeterminate sentences.[FN1] Finally, defendant asserts that had he been properly advised, there was a reasonable probability that he might have accepted both plea offers.

In response the People submit a cascade of opposing arguments. They argue that defendant's motion should be summarily denied for a failure to support allegations of fact, that the motion lacks merit, that defendant's parole violation was a collateral consequence of his convictions, and that there is no reasonable probability that defendant would have pleaded guilty even if he had been fully apprised of the consequences of his convictions. In addition, the People [*2]submit a sworn affidavit from defendant's first attorney that contradicts defendant's allegations. Defendant's second attorney who was subsequently disbarred from the practice of law and no longer resides in New York State has not been reachable.

Assuming arguendo that defendant's factual allegations are true,[FN2] this court would find that defendant was nevertheless provided with effective and meaningful representation. Accordingly, defendant's claims of ineffective assistance of counsel are rejected without a hearing.

To prevail on a claim of ineffective assistance of counsel defendant must meet the two-part test set forth in Strickland v Washington, 466 U.S. 608 [1984] (see People v McDonald, 1 NY3d 109 [2003]; People v McKenzie, 4 AD3d 439 [2d Dept 2004]). Defendant must establish that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced defendant (Strickland v Washington at 687; Hill v Lockhart, 474 U.S. 52, 58 [1985]; People v McDonald at 113-114). In the context of a plea, once the deficient performance has been established the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process" (Hill v Lockhart at 59; People v McDonald at 114). "[T]he 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 proceeding to trial." (Id.). In this instance defendant is claiming the opposite, that were it not for counsels' deficient conduct he might have accepted the People's plea offers rather than insisting on proceeding to trial.

The objective standard of reasonableness by which counsel's performance must be measured depends on whether the consequences of the potential guilty plea were collateral or direct. In People v Ford, 86 NY2d 357, 403 [1995], the Court of Appeals drew a distinction between those direct consequences of a plea of which a defendant need be advised and those indirect or collateral consequence that need not be addressed by the trial court before a defendant pleaded guilty. A direct consequence was defined as "one which has a definite, immediate and largely automatic effect on a defendant's punishment" (Id.) In contrast a collateral consequence is "a result peculiar to the individual's personal circumstances and one not within the control of the court system" (Id.) The Court held in Ford that deportation was a collateral consequence.

A decade later, in People v Catu, 4 NY3d 242 [2005] post-release supervision was held to be a direct consequence of a criminal conviction and therefore the trial court must fully advise a defendant of its statutory imposition before accepting a guilty plea. In so holding the Court reasoned that the period of statutorily mandated post-release supervision was automatically and directly imposed by the trial court and its impact on defendant's sentence was immediate.

The revocation of a defendant's parole and the associated sentence for its violation is like deportation a collateral consequence of a guilty plea. While the sentence for a persistent violent felony offender is imposed consecutively to any undischarged sentence by operation of law (P.L. §70.25[2-a]), the revocation of parole is not a condition imposed by the trial court but is the [*3]product of a separate proceeding before the New York State Division of Parole (Executive Law §259-i [3][d]; 9 N.Y.C.R.R. 8004.3; see People v Tinort, 5 Misc 3d 238 [Sup Ct NY County 2004]). Thus, the final aggregate sentence rests on the outcome of the parole revocation proceeding and is beyond the control of the trial court.

The revocation of a defendant's parole as a consequence of subsequent convictions is a serious matter but the mere failure of counsel to advise defendant of the potential collateral consequences of his guilty plea, without more, does not constitute ineffective assistance of counsel (People v McDonald at 114; People v McKenzie at 439). If however, counsel affirmatively misinformed or misled a defendant about the collateral consequences such advice would be objectively unreasonable and deficient (People v McDonald at 114-115).

In McKenzie it was "undisputed that the advice given by trial counsel regarding the deportation consequences of the defendant's plea...was incorrect." (People v McKenzie at 439). By telling the defendant that he was deportable, counsel misled defendant by advising him that deportation was not inevitable and unavoidable. Counsel's advice had ignored the newly amended Immigration & Nationality Act which eliminated all discretion by the immigration authorities. Thus, counsel's advice in McKenzie, even if rendered in ignorance, was held to be an affirmative misrepresentation that was objectively unreasonable and constitutionally deficient.

In this instance, defendant was not affirmatively mislead by either attorney but rather, by defendant's own account, they failed to correct his misunderstanding about how the remainder of his parole sentence would be discharged.[FN3] With regard to defendant's first attorney, after rejecting the first plea offer he and counsel had no further discussions of a disposition.[FN4]

Under these circumstances, neither counsel's performance was objectively unreasonable. Because counsel was not legally obligated to inform defendant of the impact of his plea on his parole status, counsel had no corresponding legal obligation to correct defendant's misunderstanding about the collateral consequence that defendant had apparently derived from an outside source.[FN5] This court therefore determines that under the circumstances counsel's [*4]performance was not ineffective and was not constitutionally deficient.

In any event defendant has not established that there is a reasonable probability that but for counsels' deficiencies he would have insisted on pleading guilty.The Court in McKenzie closely examined the defendant's affidavit to ascertain the strength of his determination to reject the plea offer had he been accurately informed about the immigration consequences of a plea (People v McKenzie at 439-440). The Court referred to excerpts from the defendant's affidavit as a indication of his resolve to avoid deportation noting that if "deportation was even a possibility, [he] would never have agreed to plead guilty." (Id. at 439). Furthermore, "[h]e explained with evidentiary detail why avoiding deportation was so important to him" (Id.).

Absent from defendant's affidavit is the evidentiary detail and resolve that led the Court in McKenzie to order a hearing on the defendant's CPL §440.10 motion. In its place is a less committed, more equivocal attitude far removed from a resolute intention to plead guilty. Defendant stated that "there was a very strong probability that defendant could have been persuaded to accept the offer the same way the Legal Aid attorney was able to convince him not to testify at the grand jury after arguing with defendant for at least 15 minutes" (emphasis supplied). That defendant, if fully aware of the consequences of his plea, might have been willing to entertain accepting the plea offer if counsel applied enough pressure is not a sufficiently strong commitment to warrant a hearing.

Accordingly, defendant's motion is denied without a hearing.

This decision shall constitute the order of the court.

E N T E R:

_________________________

ANNE G. FELDMAN

J.S.C. Footnotes

Footnote 1:Pursuant to P.L. 70.30(1)(b) the maximum term of the proposed plea offer to defendant would have been added to the undischarged portion of defendant's previous indeterminate term resulting in a merger of maximum terms and aggregate sentences of ten years to life and eight years to life.

Footnote 2:The court finds on its face that the affidavit from defendant's first attorney is credible and may very well lead to a finding that defendant's claims are without merit. Moreover, the likelihood of successive counsel failing in an identical manner to advise defendant about the same routine matter is extremely low.

Footnote 3:Defendant submits a letter to first counsel's Legal Aid supervisor written after his rejection of the plea offer of ten years to life that explained his reason for doing so. The letter highlights defendant's stated confusion but does not establish or even accuse his first attorney of having misinformed him.

Footnote 4:Defendant alleges that his second attorney was not even willing to discuss the possible sentence he might face in a parole revocation hearing.

Footnote 5: Defendant also contends that counsel's performance was ineffective because counsel had violated his ethical obligations. In the United States v Couto, 311 F3d 179 [2d Cir 2002], the Second Circuit "held that affirmative misstatements by defense counsel may, under certain circumstances, constitute ineffective assistance of counsel" (People v McDonald at 114). The Second Circuit also briefly discussed the concept that "standards of attorney competence may have evolved to the point that a failure to inform a defendant of the deportation consequences of a plea would by itself now be objectively unreasonable" but never resolved the issue (U.S. v Couto at 188). The Court of Appeals in McDonald relied on Couto without reaching or discussing ethical standards. Here, however, there is no allegation of "affirmative misstatements by defense counsel."