People v Reyes

[*1] People v Reyes 2008 NY Slip Op 51657(U) [20 Misc 3d 1128(A)] Decided on July 21, 2008 Supreme Court, Kings County Lewis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2008
Supreme Court, Kings County

The People of the State of New York

against

Jamal Reyes, Defendant.



14305/94



Plaintiff Attorney:

Raymond Radow, Esq.

Joseph Verga, Esq.

Assistant District Attorneys

Defendant Attorney

John McClintock, Esq.

Legal Aid Society

Yvonne Lewis, J.

By its 5th day of May, 2008 decision and order, this court determined that inasmuch as the plea minutes had not been furnished, it was unable to determine if Mr. Reyes' contentions viz-a-viz the ineffectiveness of trial counsel (in having misadvised him as to the elements of the crime to which he was pleading guilty) was correct, much less the sufficiency of his plea; i.e., if his guilty plea had been knowingly, voluntarily, or intelligently entered. The prosecution was therefore directed to either submit the plea minutes or to produce Mr. Reyes for a hearing on his motion, pursuant to CPL 440, to set aside his July 11, 2000 plea of guilty to attempted criminal sale of a controlled substance within forty-five days of entry of said decision.

In response to the preceding, the prosecution submitted an affirmation in opposition, dated the 12th day of June, 2008, which included the plea minutes. The prosecution notes therein that Mr. Reyes, after having bench warranted for five years, was sentenced to the minimum sentence of one and one-half to three years allowable by law on a plea of attempted criminal sale of a controlled substance in the fifth degree, for having sold two bags of heroin to an undercover police officer while acting in concert with another. The prosecution argues that sufficient facts appear on the plea record to have permitted appellate review of Mr. Reyes' claim that he did not knowingly or voluntarily enter into his plea agreement due to the court's failure to have informed him 1. of the rights that he was waiving; to wit,. trial by jury, to not plead guilty, and not to be compelled to incriminate himself; 2. the nature of the charge to which he was pleading guilty; 3. the range of permissible sentences; or 4. have him acknowledge his guilt, free of coercion; and 5. his assertion of ineffective assistance of counsel arising from erroneous advise as to the elements of possession and the possible sentence he could receive if he were found guilty after trial. Accordingly, Mr. Reyes is barred by CPL §440.12(2)( c) from now raising said arguments in lieu [*2]of having done so on appeal. In addition, the prosecution notes that since the record amply documents that Mr. Reyes was fully apprised of the consequences of his plea, his assertion of ineffective assistance of counsel can be denied without a hearing, pursuant to CPL §440.30 (4) (d), since an "[a]llegation of fact essential to support the motion (1) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence." Mr. Reyes' contention that he was misadvised as to the elements of possession is especially ludicrous given that his plea was to attempted sale, not possession, as is his insinuation that he derived no benefit from his plea bargain. The fact is that he was facing respective minimums of seven years on the possession charge and a eight and one-third to twenty-five years on the sale count in the indictment.

In reply, Mr. Reyes asserts that the plea minutes reveal that he was not specifically advised of his right against compulsory self-incrimination, and that the erroneous advise given to him by his then lawyer was not on the record and therefore requires a hearing.

As this court previously noted in its decision and order, dated the 5th day of May, 2008 , "In Peo. v. Hansen, 95 NY2d 227, the Court of Appeals unambiguously set forth that [a] plea of guilty, as we have repeatedly observed, generally marks the end of a criminal case, not a gateway to further litigation, (citing Peo. v. Taylor, 65 NY2d 1, 5). As a rule, a defendant who in open court admits guilt of an offense may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered (citing, Peo. v. Di Raffaele, 55 NY2d 234, 240; and Tollett v. Henderson, 411 US 258, 267). This is so because a defendant's conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial' (citing, Di Raffaelle, supra, at 240). . .A guilty plea does not, however, extinguish every claim on appeal. The limited issues surviving a guilty plea in the main relate either to jurisdictional matters (such as an insufficient accusatory instrument) or to rights of a constitutional dimension that go to the very heart of the process (such as constitutional speedy trial right, the protection against double jeopardy or a defendant's competency to stand trial (citing, Peo. ex rel. Battista v. Christian, 249 NY 314, 318; Peo. v. Beattie, 80 NY2d 840, 842; see also, Rosenbatt, Cohen and Brownstein, Criminal Appellate Practice, in Ostertag and Benson, General Practice in New York §38.8, at 32, et. al.). . The critical distinction is between defects implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not. . . .As the United States Supreme Court has explained, a guilty plea renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established' (citing Menna v. New York, 423 US 61, 63)."

"The effective assistance of counsel is essential to receiving a fair trial (See Peo. v. Claudio, 83 NY2d 76; U.S. v. Cronic, 466 U.S. 648). It can only be constitutionally met when the evidence, the law, and the circumstances of a particular case reveal that the attorney provided meaningful representation when viewed under the totality of the circumstances existing at the time of the representation (See Peo. v. Satterfield, 66 NY2d 796, Peo. v. Baldi, 54 NY2d 137 McKinney's Const. Art. 1 §6, USCA Const. Amend. 6). Hence, [to] succeed on a claim that trial [*3]counsel was ineffective, a Defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness,' and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Defendant must also show that he suffered actual prejudice.' (See Strickland v. Washington, 66 U.S. 688; Mills v. Scully, 826 F2d 1192; Peo. v. Morgan,157 AD2d 64; Peo. v. Sullivan, 153 AD2d 223)."

The decision whether to permit a Defendant to withdraw a previously entered plea lies within the Court's sound discretion. However, in the absence of anything in the record to suggest that the Defendant's plea was either improvident or baseless, neither his assertions of innocence nor that he was ill advised is sufficient to warrant withdrawal of the plea (See Peo. v. Rosa, 239 AD2d 364; Peo. v. McDowell, 198 AD2d 236; and Peo. v. Bourdonnay, 160 AD2d 1014). In addition, the Defendant's unhappiness or ". . . change of heart prompted by his reevaluation of either the Government's case against him or the penalty that might be imposed is not a sufficient reason to permit withdrawal of a plea " (See U.S. v. Gonzalez, 970 F2d 1100; Peo. v. Figueroa, 757 F2d 475; and Peo. v. Leggett, 163 AD2d 862). The fact is that in order to allow Mr. Reyes to withdraw his plea, this court must find that his plea and waiver of rights does not evince "a reasonable bargain that was appropriate under the circumstances, with no demonstration of unfairness or coercion to conceal error or misconduct by the Court or his attorney that would adversely impact on the integrity of the judicial process" (See Peo. v. Holman, 89 NY2d 876; Peo. v. Avery, 85 NY2d 503; and Peo. v. Seaberg, 74 NY2d 1). In Peo. v. Catu, 4 NY3d 242, 792 N.Y.S.2d 887, the Court of Appeals recently held that "[w]hile a trial court has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal convictions, the court must advise a defendant of the direct consequences of the plea (citing, Peo. v. Ford, 86 NY2d 397 [1995]). Collateral consequences are peculiar to the individual and generally result from the actions taken by agencies the court does not control.' A direct consequence is one which has a definite, immediate and largely automatic effect on defendant's punishment'."

An examination of the plea minutes herein reveals that Mr. Reyes was fully apprised of his rights, knew the direct consequences of his plea, the sentence that he would receive (far below any that he could have received after trial), that he was waiving his right to appeal, that he had a full and fair opportunity to confer with his attorney, that he was not under the influence of alcohol or narcotics, or otherwise impaired, that he freely and willingly admitted his guilt with a candid account of the acts committed by him. In other words, the plea record establishes that Mr. Reyes, contrary to his assertions, knowingly, intelligently, and voluntarily pleaded guilty; that his lawyer's performance did not fall below any objective standard of reasonableness; and that he suffered no actual prejudice. The plain fact, as evidenced by the record, is that Mr. Reyes received ". . .a reasonable bargain that was appropriate under the circumstances, with no demonstration of unfairness or coercion to conceal error or misconduct by the Court or his attorney that would adversely impact on the integrity of the judicial process." (See Peo. v. Holman, supra, 89 NY2d 876; Peo. v. Avery, supra, 85 NY2d 503; and Peo. v. Seaberg, supra, 74 NY2d 1).

WHEREFORE, on the basis of the preceding, Mr. Reyes' motion, pursuant to CPL 440, to set aside his July 11, 2000 plea of guilty to attempted criminal sale of a controlled substance [*4](heroin), for which he was sentenced to one and one-half to three years incarceration, on the grounds that the plea was not knowingly, voluntarily, or intelligently entered into, and the ineffective assistance of counsel is denied in its entirety. This constitutes the decision and order of this Court.

__________________________________

Hon. yvonne lewis, J.S.C.