People v Coppola

[*1] People v Coppola 2007 NY Slip Op 52426(U) [18 Misc 3d 1106(A)] Decided on November 29, 2007 Supreme Court, Kings County Garnett, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 2, 2008; it will not be published in the printed Official Reports.

Decided on November 29, 2007
Supreme Court, Kings County

The People of the State of New York

against

Lucio Coppola, Defendant.



3888-2005



The defense attorney was:
Mr. Leon Schrage, Esq.
26 Court Street
Brooklyn, NY 11201

The People were represented by Assistant District Attorney
Caroline Campomaneas


William E. Garnett, J.

On July 7, 2005, the defendant pled guilty to the class "D" felony of Criminal Sale of a Controlled Substance in the Fifth Degree (PL §220.31). On September 28, 2005, the defendant was sentenced to five years probation. Thereafter, on May 30, 2006, the defendant pled guilty to violating his probation and was re-sentenced to serve one year in jail.

The defendant moves pursuant to CPL Section 440.10, to vacate the judgment of conviction upon the grounds that (1) the court failed to advise the defendant that by pleading guilty he would be deported; (2) the defendant received ineffective assistance of counsel in that counsel failed to properly advise him of the immigration consequences of his plea; (3) the defendant's plea was not knowingly, voluntarily and intelligently entered and (4) the Superior Court Information was invalid in that it is tantamount to a "short form indictment" and lacks a plain and concise factual statement in each count as required by CPL Section 200.50(7).

The court appointed an 18B attorney to represent the defendant. The attorney reviewed the defendant's motion and adopted its contentions and arguments.

Facts

On May 31, 2005, the defendant was arraigned on a felony complaint which charged him

with Criminal Sale of a Controlled Substance in the Third Degree (PL §220.39[1]), etc.

On July 7, 2005, the People made a plea offer of Criminal Sale of a Controlled Substance

in the Fifth Degree with a sentence of probation. The People also agreed to dismiss, as covered, another case which was pending before the court. The defendant accepted the offer.

Prior to accepting the plea, the court asked the defendant if he spoke and understood the English language to which the defendant replied that he did. The defendant acknowledged that he was not under the influence of any drugs or alcohol. The defendant further acknowledged that he had had enough time to discuss all the matters in his case including the waivers which he had signed with his attorney and that he was satisfied with her representation. In response to the court's questions, the defendant told the court that his present address was 2607 East 24th Street in [*2]Brooklyn, a private house, that he was born on December 13, 1957 and that he was physically and mentally able to proceed. (Plea minutes, pp. 3-4).

The court then asked the defendant if he understood that he was charged with a felony and that he therefore had a right to a preliminary hearing, the right to have the case presented to a Grand Jury and the right to be prosecuted only after a Grand Jury had voted and filed an indictment against him. The defendant acknowledged that he understood these rights. Further, the defendant acknowledged that he understood that, by signing the waivers, he was giving up all of these rights. The defendant consented to prosecution by Superior Court Information. The defendant acknowledged that he understood that he was giving up his right to appeal the plea and sentence and that he had had the waiver explained to him by his attorney. (Plea minutes, pp. 4-5).

The court reviewed the waivers of indictment, preliminary hearing and right to appeal after sentencing which had been executed by the defendant. The court found that the waivers complied with the Criminal Procedure Law and that they had been executed in a knowing and intelligent fashion in the presence of counsel. The court approved the waivers. (Plea minutes, pp. 5-6).

Defense counsel then withdrew the defendant's previously entered plea of not guilty and told the court that the defendant would plead guilty to Criminal Sale of a Controlled Substance in the Fifth Degree. (Plea minutes, p. 6).

The defendant was asked if he understood what his attorney had done on his behalf in offering the guilty plea and if he wished to enter that plea. The defendant replied: "Yes." The defendant further acknowledged that he was entering this plea voluntarily of his own free will, that no one had threatened him to plead guilty and that no other promises, besides the court's promise of a five-year probation term, had been made to him to make him plead guilty. (Plea minutes, pp. 6-7).

The court explained to the defendant that by pleading guilty to a felony crime he was giving up valuable rights including his right to have a trial by a judge or jury, his right to confront and cross-examine witnesses against him, his right to present a defense or defenses to the charges, his right to have the charges proven beyond a reasonable doubt at a trial and his right to remain silent. The defendant acknowledged that he understood that he was giving up all of these rights and, knowing that he was giving up these rights, still wished to plead guilty. The court then asked the defendant if he was pleading guilty to the Class "D" felony of Criminal Sale of a Controlled Substance in the Fifth Degree because he was, in fact, guilty. The defendant replied: "Yes, sir." The defendant also acknowledged that he understood his plea of guilty was the same as if he had gone to trial in the Supreme Court before a judge or jury and had been found guilty of the Class "D" felony of Criminal Sale of a Controlled Substance in the Fifth Degree. (Plea minutes, pp. 7-8).

The defendant was asked, if by his plea of guilty, he was admitting that on May 31, 2005, at about 1:30 in the morning, at the corner of Avenue Z and East 19th Street, in the County of Kings and in the State of New York, he did knowingly and unlawfully sell a controlled substance, namely crack/cocaine to a person whose identity was known to the District Attorney's Office. The defendant admitted that he had. The defendant further acknowledged that he understood that in order for the court to keep its promise of a probation sentence, he would have to abide by three conditions, i.e., fully and completely cooperate with the Probation Department in the preparation of the pre-sentence report, not be arrested before the ultimate sentence date and appear on any day or days required for sentence. He further acknowledged that if he violated any of those conditions, the plea would stand and he would face up to 2 1/2 years in state prison followed by a one-year period of post release supervision. (Plea minutes, pp. 9-10). [*3]

At no time during this colloquy did the defendant express any lack of understanding of the meaning of the words used or the principles expressed.

On September 28, 2005, the defendant appeared for sentencing. Before the court imposed the negotiated sentence of five-years probation, the defendant was given an opportunity to address the court. The defendant declined. (Sentencing minutes, p. 3).

Conclusions of Law

CPL Section 440.10(1) provides that "[a]t any time after entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: ... (h) the judgment was obtained in violation of a right of the defendant under the constitution of the state or the United States".

Contrary to the defendant's contention, the court's failure to inform the defendant that his plea could be the basis for deportation is not a basis for vacating the judgment. Even though CPL Section 220.50(7) requires the court to advise a defendant entering a felony plea of the possibility of deportation, the statute clearly states that "[t]he failure to advise the defendant... shall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction." Moreover, deportation and other immigration consequences have been held to constitute collateral consequences of conviction and therefore the court need not, before accepting a guilty plea, advise the defendant of the possibility of deportation. People v. Ford, 86 NY2d 397, 403 (1995). Consequently, the "failure to warn of such collateral consequences will not warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the Court does not control." People v. Ford, supra. The defendant never brought his immigration status to the attention of the court.

The defendant contends that his attorney was ineffective because he failed to properly advise him of the immigration consequences of his plea, that he failed to inform the court about mitigating and aggravating circumstances and that he failed to get him into a drug program. Parenthetically, it should be noted that the defendant's subsequent violation of probation was largely bottomed on his failure to abide by the direction that he obtain out-patient drug treatment. The defendant asserts that he told counsel that he would be deported because of the conviction and counsel should have sought a plea to a possessory crime. Defendant contends that counsel's actions prejudiced him and, that if he had known of the true and direct immigration consequences of his guilty plea, he would have sought a different plea or would have taken the case to trial. Yet, the defendant plainly knew the immigration consequences of his plea and never brought his status to the attention of the court. Thus, the defendant squarely contradicts himself.

The right to effective assistance of counsel is guaranteed by both the United States Constitution, (US Const. 6th Amendment) and the New York State Constitution, (NY Const., Art 1, §6). The defendant is seeking to vacate the judgment of conviction solely on federal constitutional grounds.

The federal standard for reviewing claims of ineffective assistance of counsel was set forth in Strickland v. Washington (466 U.S. 668 [1984]). In Strickland, the U.S. Supreme Court adopted a two-pronged test for evaluating claims of ineffective assistance of counsel. First, the defendant must demonstrate that his or her attorney's performance was deficient, i.e., that counsel's representation fell below an objective standard of reasonableness. Second, the defendant must show that counsel's deficient performance prejudiced the defendant. Strickland v. Washington , at 687; People v. McDonald, 1 NY3d 109, 113 (2003). To satisfy the second prong, a "defendant must [*4]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." People v. McDonald, supra at 114.

It is well-settled that "the failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel" under federal law. People v. Ford, supra at 404; People v. McDonald, supra at 114. Some courts in applying Strickland have held that "affirmative misstatements by defense counsel, may, under certain circumstances, constitute ineffective assistance of counsel." People v. McDonald, supra. The defendant admits that he knew that he would be subject to deportation. Despite this fact, the defendant never refused the plea or brought his reservations to the attention of the court at the plea or sentence. In this case, counsel could not have made any "affirmative mistatements" because the defendant clearly knew the immigration consequences of his plea. He does not contend that his attorney prevented him for revealing his immigration status. He never avers that his attorney prevented him from going to trial or seeking a different disposition. In fact, during the plea allocution, he conceded that he was satisfied by his attorney's representation.

The attorney's performance was objectively reasonable. In fact, this attorney negotiated an entirely favorable plea which covered another pending case and included the court's promise of a probation sentence. If the defendant had gone to trial, he faced a sentence of up to 2 ½ years of incarceration followed by a one year period of post-release supervision. PL §70.70(2)(a)(i).

Moreover, the defendant has not demonstrated that he was prejudiced within the meaning of Strickland. The defendant readily admitted that he had sold drugs. Thus, his assertion that he was a buyer and not a seller lacks credibility. The defendant made a direct sale of crack/cocaine to an undercover officer by accepting a sum of U.S. currency from the undercover and giving that officer a quantity of crack cocaine. Knowing the immigration consequences, the defendant wholeheartedly accepted the plea bargain.

The defendant admits in his affidavit that he was cognizant of the real threat of deportation. Yet, he knowingly, voluntarily and freely entered into the plea bargain. His attorney's representation was clearly effective and the defendant has not established any reasonable probability that he would not have accepted the plea offer. In fact, he did accept knowing the immigration risks.

The defendant further contends that the judgment of conviction must be vacated because the plea was not knowingly, intelligently and voluntarily entered into because: (1) the court failed to explain the elements of the offense to which he pleaded guilty; (2) his recitation of the facts negated certain elements of the crime and therefore the court was required to probe further to insure that the plea was entered intelligently and knowingly; (3) the defendant was incompetent at the time of the plea and (4) the defendant, a former drug addict, was under the influence of the drugs.

A guilty plea will be upheld as valid if it was entered voluntarily, knowingly and intelligently. People v. Fiumefreddo, 82 NY2d 536 (1993). A determination of whether the defendant has entered the plea voluntarily, knowingly and intelligently is left to the trial court's sound discretion. People v. Nixon, 21 NY2d 338, 355 (1967).

To ensure that a plea is properly entered, the court must inform the defendant of the rights surrendered by foregoing a trial and pleading guilty. People v. Catu, 4 NY3d 242 (2005); People v. Nixon, supra. There is no "uniform mandatory catechism" for a valid plea allocution. People v. Nixon, supra at 353. The court must also inform the defendant of the direct consequences of a plea, i.e., those "which ha[ve] a definite, immediate and largely automatic effect on the defendant's punishment." People v. Ford, supra at 403; People v. Catu, supra at 244. A court, however, is under no obligation to inform the defendant of the collateral consequences of a plea, i.e., those which are [*5]"peculiar to the individual and generally result from the actions taken by agencies the court does not control." People v. Ford, supra.

The minutes of the plea colloquy clearly demonstrate that the defendant acted knowingly, voluntarily and intelligently when he entered the plea. The defendant's assertion that the court did not explain the elements of the crime is belied by the record. The court asked the defendant if he was admitting that on May 31st 2005, at about 1:30 in the morning, at the corner of Avenue Z and East 19th Street, in Kings County and State of New York, he did knowingly and unlawfully sell a controlled substance, namely crack/cocaine, to a person whose identity was known to the District Attorney's Office. The defendant replied: "Yes, your honor." (Plea minutes p. 9). The defendant's allocution contained all of the elements of the crime.

The defendant's assertion that his recitation of the facts negated certain elements of the crime and required the court to probe further is likewise undermined by the record. The defendant did not make any statements which negated any of the elements of the crime.

The defendant's assertion that he was incompetent at the time of the plea is not supported by the record. On the day that the defendant pleaded guilty, the record is barren of any indication that he was incompetent. The defendant did not manifest any behavior which would have alerted the court to inquire about his competency. "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.'" People v. Morgan, 87 NY2d 878, 880 (1995), quoting People v. Armlin, 37 NY2d 167, 168 (1975). The defendant gave appropriate and coherent responses to the court's questions and knowingly waived his rights. His interaction with the court during the plea colloquy was rational and devoid of any objective indication that he was anything but lucid and focused. His answers to the court's inquiries were clear and unequivocal. Most significantly, the defendant admitted that he was mentally able to proceed when he pleaded guilty.

The defendant's assertion that he was under the influence of drugs is likewise belied by the record. To the contrary, the defendant, told the court, that he was not under the influence of any drugs or alcohol. Likewise, his interaction with the court demonstrated that he was rational and lucid during the plea colloquy.

Finally, the defendant's contention that the Superior Court Information was invalid in that it was tantamount to a "short form indictment" and lacked a plain and concise factual statement on each count as required by CPL Section 200.50(7) is without merit. In accordance with CPL Section 200.50, the Superior Court Information designated the offense charged, the county, the date on which it occurred and contained "[a] plain and concise factual statement" which supported every element of the offense charged and the defendant's commission thereof with sufficient precision to clearly apprise the defendant of the conduct which was the subject of the accusation. People v. Iannone, 45 NY2d 589 [1978]. Thus, the Superior Court Information was not so vague as to be jurisdictionally defective on its face. CPL Sections 200.15; 200.50.

Based on the foregoing analysis and discussion, the defendant's motion to vacate the judgment is denied in its entirety.

This opinion shall constitute the decision and order of the court.

Dated: November 29, 2007

Brooklyn, New York

_______________________

William E. Garnett [*6]

Acting Supreme Court Justice