People v Nunez

[*1] People v Nunez 2010 NY Slip Op 51016(U) [27 Misc 3d 1232(A)] Decided on May 21, 2010 Supreme Court, Bronx County Seewald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 15, 2010; it will not be published in the printed Official Reports.

Decided on May 21, 2010
Supreme Court, Bronx County

The People of the State of New York

against

Orlando Nunez, Defendant



6786/94



The People were represented by Assistant District Attorney Maureen L. Grosdidier of the Office of the Bronx County District Attorney.

The defendant was represented by Jeffrey M. Okun, Esq. of New York City.

Robert G. Seewald, J.

Defendant's motion, pursuant to CPL § 440.10 (1) to vacate the instant judgment of conviction is denied.

In August and September 1994, New York City police officers, according to the various felony complaints on file in this case, as well as the indictment itself, conducted an undercover buy and bust operation inside a retail food establishment located at 1680 Westchester Avenue [Bronx County], where the defendant [and codefendant] were employed. It was alleged that the defendant, acting in concert with the codefendant, made a total of six separate sales of a controlled substance (i.e., cocaine) to an undercover officer during this time frame. The operation terminated on September 8th, the date of the last alleged sale, when officers entered the premises to execute a search warrant and also place the defendant and [codefendant] under arrest.

In the felony complaint referable to the defendant's September 8th arrest, the arresting officer ["deponent"] averred, in relevant part, as follows:

"[P]ursuant to a . . . search warrant . . . deponent entered said location and observed the defendants to be in custody and control of 40 clear ziplock bags of a white powdery substance in that 23 of the ziplocks

of white powder substance were located in a box of beer in the rear of said location, 15 of the said ziplocks of white powdery subsrabce [sic] were located in the pants pocket of defendant Orlando Nunez and two of the said ziplocks . . . were located in the pants of the[codefendant]" [emphasis supplied].

Eleven days later, on September 19, 1994, the Grand Jury of Bronx County handed down a twenty-one-count indictment against the defendant [and codefendant], charging them with six separate and distinct class B felony drug sales (PL § 220.39 [1]) [*2]- in addition to other related drug crimes. The first eighteen counts were felonies.[FN1]

In reference to the subject sale crimes, count one charged the defendant [and codefendant] with criminal sale of a controlled substance [i.e., cocaine- 1 bag] in the third degree (PL § 220.39 [1]) to an undercover officer on August 18, 1994.

Count three charged the defendant [and codefendant] with criminal sale of a controlled substance [i.e., cocaine - 3 bags] in the third degree (PL § 220.39 [1]) to an undercover officer on August 19, 1994.

Count five charged the defendant [and codefendant] with criminal sale of a controlled substance [i.e., cocaine - 1 bag] in the third degree (PL § 220.39 [1]) to an undercover officer on August 23, 1994.

Count seven charged the defendant [and codefendant] with criminal sale of a controlled substance [i.e., cocaine - 11 bags] in the third degree (PL § 220.39 [1]) to an undercover officer on August 30, 1994.

Count 10 charged the defendant [and codefendant] with criminal sale of a controlled substance [i.e., cocaine - 2 bags] in the third degree (PL § 220.39 [1]) to an undercover officer on September 2, 1994.

Count 12 charged the defendant [and codefendant] with criminal sale of a controlled substance [i.e., cocaine - 1 bag] in the third degree (PL § 220.39 [1]) to an undercover officer on September 8, 1994.

As clearly confirmed by the affidavit of the defendant himself, these alleged sales were predicated upon the activity of an undercover officer at a store where the defendant was employed as a cashier (defendant's affidavit [dated 3/2/10], ¶2 - annexed as exhibit A to the defendant's moving papers [dated 4/21/10]). Indeed, upon his arrest, defendant allegedly stated "I work at this store" (People's CPL § 710.30 [1] [a] Statement Notice - annexed to the indictment on file); and, in this regard, when the defendant was interviewed by a CJA representative - shortly after his arrest - defendant stated that he was the manager of the food market where the aforesaid alleged sales were consummated.

At this point, it must be noted that, under the drug sentencing laws in effect in 1994, if defendant was convicted after trial of just one of the six charged sales, he faced a mandatory indeterminate minimum period of incarceration of 1 to 3 years; the permissible maximum indeterminate sentence was 8 1/3 to 25 years. What is more, if the defendant was convicted of two or more of the six charged sales, the sentences could, as a matter of statutory construction, as well as the sentencing court's discretion, be imposed consecutively (see PL § 70.25 [2]), as plainly illustrated by People v Brooks (210 AD2d 800, 803 [3rd Dept 1994], lv denied 85 NY2d 906) and People v Williams (187 AD2d 547, 548 [2nd Dept 1992]).

That noted, this case was initially assigned to this Court on October 28, 1994, according to the notations on the official court file. After many, many conferences on numerous adjourned dates - spanning a two-year time frame - defendant's experienced retained counsel (hereinafter "plea counsel") was nonetheless able to [*3]extract a very generous and highly advantageous plea bargain from the prosecution; one that would result in no jail time for the defendant. Specifically, as a result of plea counsel's extraordinary efforts to spare the defendant any period of incarceration, the People were willing to reduce the six aforesaid sale counts (No.#

1, 3, 5, 7, 10 & 12) to the class C felony of attempted criminal sale of a controlled substance in the third degree (PL § 110/220.39 [1]) and, in exchange for defendant's guilty pleas to these reduced counts, the People would concomitantly allow defendant to receive a sentence of five years' probation. Defendant accepted the offer, pleading guilty on December 9, 1996. This Court thereafter imposed the promised probationary sentence the next month, on January 31st [1997].

The defendant was apparently satisfied with his plea bargain and, in this regard, the services rendered by his plea counsel, as he never filed a notice of appeal from the conviction.[FN2]

Nor did defendant's statement to the probation officer who had interviewed him shortly after he had entered his guilty plea cast any doubt upon the wisdom of his plea and, moreover, plea counsel's efforts to spare him from a well-deserved lengthy prison term if he was convicted of several counts after trial. More particularly, in a written report [dated 1/31/97], the probation officer noted "[t]he defendant admits his guilt and stated that he committed the instant offense for profit" (id. at p 3).

However, more than thirteen years after his conviction, defendant filed the instant CPL article 440 motion seeking to vacate the judgment of conviction on several grounds, all of which are clearly devoid of merit upon examination below.

Defendant's first argument in support of vacatur is that he was deprived of effective assistance of counsel in connection with his guilty plea.

Preliminarily, defendant's thirteen-year unexplained delay in making this motion is most troubling, particularly in view of the critical and unfortunate fact that the defendant's plea attorney died around December 2003.[FN3] As there was about seven years between the date of defendant's conviction and counsel's reported death, it cannot be gainsaid that the "defendant had ample opportunity to contact him with a view to making a CPL 440.10 motion . . ." (People v Perez, 47 AD3d 409 [1st Dept 2008], lv denied 10 NY3d 843). Also troubling is the additional fact that, in his reply affirmation [dated 5/6/10], the attorney now representing the defendant states that he "met [d]efendant in June 2006 . . ." (id. at ¶3, p 1), yet counsel proffers no explanation whatsoever for waiting almost four years before he filed the instant motion.

Consequently, defendant's clearly inexcusable and unjustifiable excessive delay has irreparably prejudiced the People in opposing the application. Even more troubling is the fact that it appears from the defendant's affidavit that several years had passed [*4]between the time defendant initially received notification from the Department of Immigration that his lawful residency status in the United States was in jeopardy - because of his prior 1997 felony conviction - and the making of the instant motion. Nor does the defendant proffer any explanation for his protracted delay.

In any event, since the Legislature has not seen fit to prescribe any time limitations on the making of a CPL § 440.10 motion, the Court is thus constrained to entertain the instant motion on its merits - or, as will be concluded, its complete lack of merits.

In an affidavit executed March 2, 2010 (annexed as exhibit A to the defendant's moving papers [dated 4/21/10]), defendant avers, in relevant part, as follows:

"5. Prior to pleading guilty, I spoke with [plea counsel]. I told

[him] I am not a United States citizen, and I was worried that

a conviction would cause me to be deported. [Plea counsel]

told me that I had nothing to worry about. He told me that I

would be able to keep my green card despite pleading guilty.

9. I never would have accepted the plea offer that was given

in court had I known that this conviction would be used to deport me. I relied on the advice that the lawyer provided me.

I believe that I could have successfully fought this case, however, I took the plea as I no longer had the funds to pay

my attorney, and the attorney told me that I should plead guilty

and by pleading guilty, I would still be able to keep my green

card . . .".

In Strickland v Washington (466 US 668 [1984]), "the Supreme Court adopted a two-part test for evaluating claims of ineffective assistance of counsel generally. A defendant must show that counsel's performance was deficient,' and that the deficient performance prejudiced the defense' [citation omitted]". The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness [citation omitted]. The second prong, also known as the prejudice prong, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process' [citation omitted]. In order to satisfy this prong, a 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 going to trial' [citation omitted]" (People v McDonald, 1 NY3d 109, 113-114 [2003]).

Recently, in Padilla v Kentucky (559 US __ [2010], 130 S Ct 1473) the United States Supreme Court had occasion to review a claim of ineffective assistance of counsel in the context of a case similar to the instant setting. Defendant Padilla, a lawful permanent resident of the United States for more than forty years, pleaded guilty to transporting a large quantity of marijuana. Upon his subsequent receipt of a [*5]deportation notice, he sought to vacate his conviction upon the alleged ground "that his counsel not only failed to advise him of this consequence prior to entering the plea, but also told him that he did not have to worry about immigration status since he had been in the country so long' [citation omitted]" (130 S Ct at 1478). Defendant Padilla also "allege[d] that he would have insisted on going to trial if he had not received incorrect advice from his attorney" (id.).

The Supreme Court "agree[d] with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that [the Court did] not address" (id. [emphasis added]).

Noting that a defendant is entitled to effective assistance of counsel before deciding to enter a guilty plea (id. at 1480-1481), the Supreme Court observed that, "[u]nder Strickland, we first determine whether counsel's representation fell below an objective standard of reasonableness' [citation omitted]. The first prong - constitutional deficiency - is necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.' [Citation omitted]" (id. at 1482).

"The weight of prevailing professional norms supports the view that counsel must advise [his or] her client regarding the risk of deportation [citations omitted]. . . . . [A]uthorities of every stripe - including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications - universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients . . . ." [citations omitted]" (id.).

Thus, the Supreme Court concluded that "when the deportation consequence is truly clear,. . . the duty to give correct advice is equally clear" (id. at 1483). "[W]e have long recognized the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to the effective assistance of counsel. [Citation omitted.] The severity of deportation . . . only underscores how critical it is for counsel to inform [his or] her noncitizen client that he faces a risk of deportation [footnote omitted]" (id. at 1486). "[W]e now hold that counsel must inform [his or] her client whether his plea carries a risk of deportation" (id. [emphasis supplied]).[FN4]

The Supreme Court, however, did not resolve the ultimate issue - i.e., vacatur of his conviction - raised by the defendant. Rather, the Court ended its opinion by stating:

"Taking as true the basis for his motion for postconviction relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether Padilla is entitled to relief will depend on whether he [*6]can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below (id. at 1486-1487).

Unlike the defendants in McDonald and Padilla, who averred that they would have insisted on going to trial had their respective plea attorneys correctly and accurately informed them that a deportation notice would surely follow a guilty plea, defendant's affidavit is bereft of any averment that he, too, would have insisted on going to trial had plea counsel properly advised him that he would in fact be subject to deportation.

People v Bao Lin Xue (30 AD3d 166 [1st Dept 2006], lv denied 7 NY3d 809) is certainly instructive on this point. In that case, the Appellate Division held "[e]ven assuming the truth of defendant's assertion that his attorney misadvised him that his plea would not result in his deportation, that allegation was insufficient to establish ineffective assistance, because defendant never claimed that he would have gone to trial had he known the plea's immigration consequences" (id. at 167).

More fundamentally, even if it is assumed here - given the unfortunate demise of defendant's plea attorney in the ensuing years - that defendant has satisfied the first prong of Strickland, defendant's moving papers have utterly failed to satisfy the second prong of Strickland's "prejudice" test. "To demonstrate prejudice with respect to a decision to plead guilty, the second part of the Strickland analysis required [the defendant] to show that there is a reasonable probability that, but for counsel's errors, [defendant] would not have pleaded guilty and would have insisted on going to trial. [Citations and internal quotation marks omitted]" (Boakye v United States, __FS2d__ , __ [SDNY 2010], 2010 WL 1645055, slip copy p 3).

As observed by Judge Sweet in Boakye, "[t]he Supreme Court has noted that the object of an ineffectiveness claim is not to grade counsel's performance,' and [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed. [Citation omitted.] Applying this teaching, the Second Circuit has often rejected ineffective assistance claims by determining that, in view of the strength of the prosecution's case, the defendant is unable to establish prejudice. [Citations omitted]" Boakye v United States, __FS2d at __, 2010 WL 1645055, slip copy at p 4). "Even serious errors by counsel do not warrant habeas relief where the conviction is supported by overwhelming evidence of guilt" (Lindstadt v Keane, 239 F3d 191, 204 [2nd Cir 2001]).

Here, it is indeed most significant that defendant - who now clearly does not profess his innocence of the litany of felony charges contained in the indictment - failed to allege in his moving papers that he had any colorable or plausible defense to challenge the undercover officer's testimony that the defendant [acting in concert with the codefendant] was in fact the person who had sold him a controlled substance (i.e., cocaine) inside the retail food establishment where he worked on August 18th, 19th, 23rd, and 30th [1994], as well as on September 2nd and 8th [1994]. Of course, even a conviction on any one of these six charged class B felony drug sales would not only result in a mandatory state prison term, as earlier noted, but the risk of deportation as [*7]well.

In any event, it cannot be disputed that defendant's six prior alleged drug sales to the undercover officer certainly furnished probable cause for his arrest [on September 8th] as a matter of law. Thus, it necessarily follows that the police search of the defendant's person incident to that arrest - which yielded the aforementioned 15 ziplock bags containing a "white powdery substance" - alleged cocaine - was certainly lawful, too, and therefore, was clearly not vulnerable to suppression under any viable theory. Yet, defendant also utterly fails to assert that he had any colorable or plausible defense to his illegal actual possession of this contraband, which, in part, formed the basis of count 16 of the indictment, criminal possession of a controlled substance in the third degree [intent to sell] (PL § 220.16 [1]), a class B offense. A conviction on this crime alone - like any of the aforesaid sale crimes, also required a mandatory period of incarceration and, moreover, would have subjected the defendant to the risk of deportation as well.

Thus given compelling evidence of defendant's guilt of six separate sales, established by the undercover officer's testimony before the Grand Jury,[FN5] as well as defendant's actual and constructive possession of a controlled substance with intent to sell same (count #

16), juxtaposed with defendant's complete failure to proffer any colorable or plausible defense to any of the 18 assorted felony charges set forth in the indictment, the Court must conclude that the defendant has plainly failed to satisfy the second prong of the Strickland test by affirmatively demonstrating he was in fact prejudiced.

Defendant also alleges that plea counsel was ineffective because of his alleged failure to inform him that this Court, in a written decision [dated 1/30/95]), had granted plea counsel's prior written application [dated 12/29/94] for a Huntley hearing.

First of all, assuming that plea counsel did not so inform the defendant, it was the routine practice of this Court to orally announce on the record - in every case where an omnibus motion had been filed - the suppression hearings that had been granted or denied, as well as the result of this Court's in camera inspection of the Grand Jury minutes. This was habitually done on the next adjourned date immediately following the date [and filing] of the written decision.[FN6]

"In any event, defendant's contention is without merit because defendant has [utterly] failed to establish the absence of [a] strategic or other legitimate explanation for [plea] counsel's action in advising defendant to accept a plea rather than seeking suppression of statements made by defendant to the police [citations and internal quotation marks omitted]" (People v White, 37 AD3d 1112, 1113 [4th Dept 2007]; see also People v Dragoon, 256 AD2d 653, 654 [3rd Dept 1998], lv denied 92 NY2d 1048 [*8]["defendant has not shown that his counsel's decision to abandon his initial request for a (Huntley) hearing had no legitimate basis . . ."]).

More significantly, "the plea offer may not have been available after the Huntley hearing and, as such, [plea] counsel's advice to accept the offer prior to the hearing constituted a tactical decision [citation omitted]" (People v Gibson, 261 AD2d 710, 711 [3rd Dept 1999]; see also People v Adams, 31 AD3d 1063, 1066 [3rd Dept 2006], lv denied 7 NY3d 845 ["Counsel advanced pretrial motions and negotiated a very advantageous plea, the outcome of the suppression ruling was not certain and the continued availability of that plea deal was not assured . . ."]).

Here, "[i]t is clear from the record that the Huntley hearing was not held due to the very generous plea offer defendant subsequently accepted" (People v Roberts, 28 AD3d 589 [2nd Dept 2006]). "Not only could defendant have faced significantly longer sentences on each of the charges, but those sentences could have been imposed consecutively [citation omitted]" (People v Jackson, 67 AD3d 1067, 1069 [3rd Dept 2009], lv denied 14 NY3d 801), as earlier noted.[FN7]

Lastly, even if defendant's alleged oral statement to a police officer upon or shortly after his arrest - "I work at this store" - was suppressed,[FN8] the People surely had alternative independent avenues to elicit this information at trial. When interviewed by a CJA representative after his arrest, defendant reported that he was the manager at Empire Food Market, 1680 Westchester Avenue - the place of his arrest and the premises from where defendant ran his operation. In addition, the People could have issued a subpoena duces tecum to defendant's employer to obtain his payroll records.

Consequently, defendant's claim of ineffective assistance of counsel must be rejected on its sheer lack of merit.

Defendant alternatively seeks vacatur of his conviction upon the ground that this Court "had not specifically mentioned that [defendant] had the Huntley hearing available to him. . . ." (defense counsel's affirmation [dated 4/21/10, ¶6, p 5). In addition, defense counsel, in Point Two of his Argument ( Memo at p 5), asserts that "[t]his plea and judgment should be vacated as the record demonstrates that the defendant did not [*9]knowingly, voluntarily and intelligently waive his constitutional rights when the Court accepted his guilty plea". These arguments are also purely devoid of merit as well.

As to the alleged insufficiency of the plea allocution conducted by this Court, the law is firmly established that where, as here, "sufficient facts appear on the record to permit the question to be reviewed, sufficiency of the plea allocution can be reviewed only by direct appeal [citation and internal quotation marks omitted]" (People v Angelakos, 70 NY2d 670, 672-673 [1987], citing People v Cooks, 67 NY2d 100, 104 [1986]; see also People v Williams, 5 AD3d 407 [2nd Dept 2004], lv denied 3 NY3d 650).

Stated another way, "[a] CPL 440.10 motion may not be used as a device to take a belated appeal on an issue that appears on the face of the record [citation omitted]" (People v Jackson, 266 AD2d 163 [1st Dept 1999], lv denied 94 NY2d 921; see also People v Williams, 5 AD3d 407, supra ; People v Saunders, 301 AD2d 869, 870 [3rd Dept 2003, lv denied 100 NY2d 542).[FN9]

Consequently, defendant's argument is procedurally barred (see CPL § 440.10 [2] [c]).

Alternatively, it is familiar law that "a plea is not rendered invalid merely because the Trial Judge does not enumerate all the rights to which defendant is entitled or elicit a list of detailed waivers before accepting the plea. [Citation omitted]" (People v Lugo, 168 AD2d 320, 321 [1st Dept 1990], lv denied 78 NY2d 969; see also People v Harris, 61 NY2d 9, 16 [1983]).

Here, while this Court, according to the transcribed plea minutes (annexed as exhibit #

1 to the People's affirmation in opposition [dated 4/30/10]) neglected to specifically inform the defendant that, by pleading guilty, he was waiving his right to the previously ordered Huntley hearing, defendant's moving papers completely ignore any reference to the undisputed and critical fact that the Court had informed the defendant that, by pleading guilty, he was "giving up [his] right to go to trial" (p 6), and that at "[a] trial . . . the People would have to overcome [his] presumption of innocence by proving [his] guilt[ ] beyond a reasonable doubt before [he] can be found guilty of any crime" (id.); that he was "giving up [his] right to trial by jury and also a nonjury trial, if [he] wanted a trial without a jury" (id. at 6-7); that he was "giving up [his] right to remain silent and not tell us [he] committed any crime" (id. at 7); that he was giving up the "the right to take the witness stand and testify in [his] own defense . . ." (id.); and that he was "giving up [his] right to call witnesses in [his] own defense and to confront [his] accusers and have [his] attorney cross-examine them at trial" (id.). Lastly, the plea minutes also reveal that this Court had additionally informed the defendant that "a plea of guilty is the same [*10]thing as a conviction after trial" (id.).

In addition, defendant's moving papers have also overlooked the following critical plea colloquy between the Court and the defendant (at p 10):

THE COURT: Do you have doubts or second thoughts

about taking these pleas?

THE DEFENDANT: No, I don't Your Honor.

THE COURT: Rather than go to possible hearings?

THE DEFENDANT: Yes, Your Honor.

THE COURT: It's possible, when I say hearings, that you could

have had hearings dealing with the issue ofprobable cause to arrest you, to search you, to

seize anything from you, such as money, buymoney or drugs. You won't have a hearing, achance to keep such evidence out of trial.

Do you realize that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And do you want me to accept your plea, rather

than go to hearings and trial?

THE DEFENDANT: Yes, Your Honor.

Surely, the plea allocution in this case bares no resemblance to the one in People v Lopez (56 AD3d 280 [1st Dept 2008]), which the Appellate Division found infirm and thus reversed on appeal. Further, in light of every specified Boykin right (see Boykin v Alabama, 395 US 238 [1969]) that this Court had unequivocally informed the defendant that he was expressly waiving by pleading guilty, this case is clearly analogous to the factual situation encountered in People v Jones (183 AD2d 918 [2nd Dept 1992], lv denied 80 NY2d 905). There, defendant appealed his conviction on the ground that the plea "court did not advise him during his allocution that, based on his own account of his arrest, he could move to suppress the drugs recovered from his vehicle because he may have been stopped and searched without probable cause" (id.). In rejecting the defendant's argument, the Appellate Division held "a guilty plea will not be found invalid because the Judge failed to specifically enumerate all the rights to which the defendant was entitled' [citation omitted]" (id.; see also People v Rosario, 188 AD3d 422, 423 [1st Dept], lv denied ["it cannot be concluded that defendant's plea was not knowingly and voluntarily entered simply because he did not explicitly relinquish his right to move to suppress evidence . . ."]). [*11]

Intertwined with this argument (under Point Two of defense counsel's Memo - at p 5), defendant further argues for vacatur on the alleged ground that "[t]he [plea] minutes reveal that the defendant was essentially threatened into pleading guilty via threat of being sentenced to fifteen years in jail on each count . . .". Quite frankly, this argument, to say the very least, is just a gross misreading and utter distortion of the plea record - besides being taken out of its proper context.

More particularly, the supposed "threat" made by this Court - appears in the following plea colloquy: THE COURT: Okay. And is it your understanding that you and your attorney and the District Attorney's office have reached an agreement, and now the Courthas joined that agreement.THE DEFENDANT: Yes sir.THE COURT: And, Miss [name deleted - prosecutor], the agreement is? THE PEOPLE: That the defendant will receive a sentence of five year's probation.THE COURT: Okay. Is there any agreed-upon altern-ative should the defendant not return for sentence, not cooperate with the Probat-ion Department or be charged with the commission of a new crime between now and then, or shall we just leave it that the defendant is then subject up to, actually 15 years in prison on each count?THE PEOPLE: Okay, Judge, we'll leave it like that, the defendant is subject to up to 15 years in prison and the People will make a recommendation on the date should the defendant be re-arrested or violate any of the terms and conditions set forth by Your Honor with this plea.THE COURT: Is that your understanding - -THE DEFENDANT: Yes.THE COURT: - - Mr. Nunez?THE DEFENDANT: Yes, Your Honor. THE COURT: In other words, the People have agreed that you be sentenced, in view of the entire history of yourself and the case, and the facts of the case, that you should be sentenced to serve five years on probation with the alternative that you can be sentenced up to 15 years on each of these counts, should you not cooperate with Probation, not return for sentence or be charged with the commission of any new crime between now and then. Is that your understanding?[*12]THE DEFENDANT: Yes sir.THE COURT: Have any other promises or threats been made to force you or induce . . . you [to] plead guilty? THE DEFENDANT: No sir.THE COURT: Are you pleading guilty freely and voluntarily?THE DEFENDANT: Yes sir.

(Transcribed plea minutes, pp 4-6).

Of course, the Court's so-called "threat" to the defendant is a record-based error and, as such, the defense argument is clearly procedurally barred (see CPL § 440.10 [2] [c]).

But more fundamentally, this so-called "threat", in the context as quoted above, consisted of nothing more than the routine standardized warnings that a plea court is required to administer to a defendant during the plea colloquy, should the court - in the exercise of its discretion - deem it appropriate to subsequently enhance the promised sentence in the event defendant violates one or more of the specified plea conditions (see e.g. People v Goldstein, 12 NY3d 295 [2009]; People v Browning, 44 AD3d 1067 [2nd Dept 2007]; People v Baez, 67 AD3d 1204 [3rd Dept 2009], lv denied 14 NY3d 797).

Further joined under Point Two of defense counsel's memo [dated 4/21/10]) is the additional allegation that defendant's plea "attorney also set in motion a belief system that [d]efendant did not have a right to counsel. Defendant was essentially made to believe that if he no longer had the funds to defend his case, he must plead guilty, implying he does not have the right to have counsel appointed to assist him in his defense" (id. at pp 5-6). In defendant's supporting affidavit ([dated 3/2/10] - annexed as exhibit A to the defendant's moving papers [dated 4/21/10]), defendant avers in relevant part as follows: "4. I remember the substance of my final conversation with [my plea attorney] clearly. I told my attorney that I could no longer afford his legal fees. Instead of suggesting to me that I seek out a legal aid attorney, my attorney told me to plead guilty to what the DA was offering, so I could get probation and that would be the end of the case and there would be no moreconsequences after that. The lawyer told me that the plea would be five years' probation; he told me that I would have to say I was guilty. At the beginning of the plea hearing, my attorney never told me that I would have to say I was guilty of six separate incidents".

Defendant's "contention that he was unduly pressured by his [plea] attorney to [*13]accept the plea is contradicted by his answer to [this] Court that no one had coerced him to accept the plea. . . ." (People v Fitzgerald, 56 AD3d 811, 813 [3rd Dept 2008]). Defendant clearly stated "Yes sir" (p 6 of the plea minutes), when asked if he was pleading guilty freely and voluntarily by this Court and, moreover, defendant also stated "No sir" (id.) when asked if - besides the promised probationary sentence - have any other promises or threats been made to force or induce him to plead guilty.

Thus, "defendant's contention that his plea of guilty was coerced is belied by the record [citations omitted]" (People v Jackson, 56 AD3d 492, 492-493 [2nd Dept 2008], lv denied 11 NY3d 926; see also People v First, 62 AD3d 1043, 1044 [3rd Dept 2009], lv denied 12 NY3d 915; People v Caufield, 57 AD3d 796 [2nd Dept 2008], lv denied 12 NY3d 781).

While defendant - thirteen years later - also alleges that he had succumbed to his plea attorney's alleged pressure to accept the probationary sentence because he could no longer afford to continue paying counsel fees, the simple and undeniable fact is that absolutely nothing at all had prevented the defendant from placing his alleged misgivings on the record when he was addressed by the Court - either at the time of the plea proceeding or, about seven weeks later, at sentencing, thus "enabling review on direct appeal . . ." (People v Lagas, 49 AD3d 1025, 1026 [3rd Dept 2008], lv denied 10 NY3d 866).

Most significantly, had the defendant informed the Court that he lacked the necessary funds to pay his retained plea counsel to proceed to trial, rather than plead guilty - if in fact such was the case - there was a very simple remedy to the defendant's perceived predicament. The Court could have relieved plea counsel - who would apparently have had no objection if his fees were no longer being paid - and appoint assigned counsel to try the case. However, the undisputed fact that retained counsel never asked this Court to be relieved - coupled with defendant's alleged failure to bring this precise issue to the Court's attention, either at plea, sentencing, or in a timely manner thereafter - leads to the inexorable conclusion that defendant's version of events is simply not credible.

In sum, plea "[c]ounsel obtained a [most] favorable plea, and defendant stated in his allocution that he had not been coerced into taking it. There is no [credible] evidence that [plea] counsel's advice concerning the plea was a result of his economic interest [citation omitted]" (People v Harinarin, 33 AD3d 455, 456 [1st Dept 2006], lv denied 8 NY3d 846).

Lastly, under Point Three of his memo [dated 4/21/10], defense counsel notes that the codefendant - who also received a probationary sentence - was allowed to plead guilty to only one felony, while the People required the defendant to allocute to six separate drug sales; he therefore argues that the two sentences are disproportional.

Suffice it to say that this, too, is clearly a record based error which could have been raised on appeal and, as such, it is certainly procedurally barred at this very late juncture of the case (see CPL § 440.10 [2] [c]).[FN10]

Accordingly, defendant's motion to vacate the instant judgment of conviction is denied. [*14]

The foregoing opinion constitutes the decision and order of the Court.

Dated: May 21, 2010___________________________

J.S.C. Footnotes

Footnote 1: All twenty-one counts of the indictment were predicated upon an acting in concert basis (see PL § 20.00).

Footnote 2: Examination of the transcribed plea minutes (annexed as exhibit #

1 to the People's affirmation in opposition [dated 4/30/10]), plainly reveals that the defendant was not required to waive his statutory right to appeal.

Footnote 3: People's affirmation in opposition [dated 4/30/10], fn 1 - referencing exhibit #

3.

Footnote 4: Parenthetically, the Supreme Court in Padilla did not limit its holding to affirmative misadvice, expressly stating that "[i]t is quintessentially the duty of counsel to provide [his or] her client with available advice about an issue like deportation and the failure to do so clearly establishes the first prong of the Strickland analysis [citation omitted]" (id. at 1484).

Footnote 5: In a written decision [dated 1/30/95] - annexed as exhibit D to the defendant's moving papers [dated 4/21/10] - this Court had found the evidence adduced before the Grand Jury legally sufficient to sustain all counts contained in the indictment.

Footnote 6: Copies of the Court's written decision were always distributed to the People and defense counsel at that time as well.

Footnote 7: Indeed, since defendant was not some hapless addict who plied his trade on the streets to support his habit, but rather had engaged in a thriving on-going drug-sale enterprise "for profit" - as he had told the probation department after his plea - consecutive sentences for his conviction on two or more of the charged drug sales would surely have been appropriate (see e.g. People v Brooks, 210 AD2d at 803; People v Williams, 187 AD2d at 548).

Footnote 8: Defendant makes no factual showing that there was a reasonable likelihood of suppression being granted at the conclusion of a Huntley hearing (see e.g. People v Peterson, 19 AD3d 1015, 1016 [4th Dept 2005], lv denied 6 NY3d 851; People v Oruche, 181 AD2d 448, 449 [1st Dept 1992], lv denied 79 NY2d 1015) and, in this regard, plea "counsel should not be criticized for failing to pursue a potentially futile endeavor [citations omitted]" (People v Gonsa, 220 AD2d 27, 32 [3rd Dept 1996], lv denied 89 NY2d 923, habeas corpus denied 51 Fed Appx 902 [2nd Cir], cert denied 540 US 824).

Footnote 9: Indeed, in the solitary case cited by defendant in support of his argument under Point Two of his moving papers (at p 5), People v Green (242 AD2d 541 [2nd Dept 1997]), defense counsel has overlooked the critical and clearly dispositive fact that defendant Green's plea was vacated upon his direct appeal from the underlying judgment of conviction, and not via a collateral proceeding utilizing a CPL article 440 motion, as employed in the case at bar.

Footnote 10: Id. at fn 2 (p 4).