People v Eliacin

[*1] People v Eliacin 2010 NY Slip Op 51095(U) [27 Misc 3d 1238(A)] Decided on June 23, 2010 Supreme Court, Bronx County Duffy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 25, 2010; it will not be published in the printed Official Reports.

Decided on June 23, 2010
Supreme Court, Bronx County

The People of the State of New York,

against

Paul Eliacin, Defendant.



68046C-09



Distribution:

Allison Shapiro, Esq.

Assistant District Attorney

Criminal Court Bureau

265 East 161st Street

Bronx, New York 10451

Lewis Mazzone, Esq.

420 Jericho Turnpike

Suite 326

Jericho, NY 11753-1396

Attorney for Defendant

Stephen J. Mitchell, Esq.

110 Wall Street

New York, NY 10005

Trial Counsel for Defendant

Colleen D. Duffy, J.

Defendant was charged with Criminal Impersonation in the First Degree, PL 190.26(2),[FN1] Criminal Impersonation in the Second Degree, PL 190.25(3), and Harassment in the Second Degree, PL 240.26(1).

In the accusatory instrument the People contend that, on October 22, 2009, Defendant, during a traffic altercation with the driver of another vehicle, claimed to that driver that he was a police officer, held out a badge, and ordered the occupants of the vehicle to get out of the car, spitting at their car as he did so.

On December 15, 2009, after a jury already had been sworn, Defendant pled guilty to Criminal Impersonation in the Second Degree, PL 190.26(2), a misdemeanor, in full satisfaction of the pending docket in exchange for a sentence promise of one year probation and any mandatory surcharges. The Honorable Steven Paynter, Supreme Court Justice, sentenced Defendant to the promised sentence on that same day.

On May 28, 2010, Defendant filed this motion [FN2] seeking to vacate his plea [*2]contending that (1) the Court did not have jurisdiction over the action and (2) Defendant was denied his constitutional right to the effective assistance of counsel. The People have submitted no opposition to this motion.[FN3]

For the reasons set forth below, Defendant's motion to vacate his plea is denied in its entirety.

I. The Jurisdiction of the Supreme Court

Defendant's contention that CPL 440.10(1)(a) requires that this Court vacate his guilty plea on the ground that the Court did not have jurisdiction over the action has no merit. Although Defendant cites the Appellate Division (First Department) decision in People v. Correa, 70 AD3d (1st Dept. 2010), to contend that the merged Bronx Supreme Court, Criminal Division, lacked jurisdiction to hear his misdemeanor case which was prosecuted by misdemeanor information, that court's decision in Correa was reversed by the Court of Appeals. 2010 Slip Op. 04662 (June 3, 2010).

In Correa, the Court of Appeals overturned the holding of the First Department and held that the Supreme Court is a court of concurrent, general jurisdiction which is authorized to adjudicate misdemeanor cases — irrespective of whether the charge is contained in an information, an indictment or a Superior Court Information. 2010 NY Slip. Op. at 5-9. The Court of Appeals also held that the administrators of the Unified Court System were both constitutionally and statutorily empowered to reassign cases from the criminal court to the Supreme Court. Id. at 10. Accordingly, Defendant's claim that his plea should be vacated because this Court lacked jurisdiction to hear his case and accept his guilty plea is denied.

II. Right to Counsel

For the reasons set forth below, Defendant's claim that his plea should be vacated pursuant to CPL 440.10(1)(h) because he was denied the right to effective assistance of counsel also lacks merit.

A. Constitutional Right to Counsel

The Sixth Amendment to the U.S. Constitution and Article 1, § 6 of the New York Constitution both protect a defendant's right to counsel at a criminal trial. To meet federal constitutional muster an attorney's representation of a defendant must meet a minimum standard of effectiveness which is evaluated in a two-prong analysis as to whether counsel's performance was deficient and, if so, whether such deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). The New York Constitution requires, at a minimum, that a defendant be afforded "meaningful representation." People v. Baldi, 54 NY2d 137, 147 (1981); People v. Benevento, 91 NY2d 708, 713 (1998); People v. Saint Hilaire, 5 Misc 3d 1023 A, 1023A (Sup. Ct., New York Co. 2004). Here, the Court finds that both standards have been met. [*3]

Indeed, Defendant was facing one year of incarceration on the misdemeanor count if convicted. In exchange for Defendant's agreement to plead guilty, he received a sentence promise of a conditional discharge with no incarceration. Thereafter, upon consultation with his counsel, Defendant did, in fact, plead guilty and he received the promised sentence.

When, as here, a Defendant contends that his guilty plea should be vacated due to ineffective assistance of counsel, the Defendant must allege facts sufficient to show that, but for his attorney's actions or inactions, he would not have pleaded guilty. People v. McDonald, 1 NY3d 109, 115 (2003); People v. Charlotten, 44 AD3d 1097, 1099 (3rd Dept. 2007). In this case, Defendanthas alleged no such facts and made no such showing.

As set forth below, Defendant's bare assertions that his attorney, without consultation with him, waived pre-trial Huntley and Dunaway motions, did not interview prospective witnesses, and failed to communicate with him about the case, do not make out a claim for ineffective assistance. People v. Ford, 46 NY2d 1021, 1023 (1979); People v. Mance, 269 AD2d 188, 188 (1st Dept.), app. denied, 95 NY2d 836 (2000); People v. Lopez, 14 Misc 3d 1223A, 2006 NY Slip Op. 52547U, *9 (Sup. Ct., Bronx Co. 2006).

First, Defendant has failed to show in any way that any of the motions that counsel waived or arguments that he didn't make would have been successful. Mance, 269 AD2d at 188 (where defendant did not establish likelihood of success of motion, no ineffective assistance of counsel for failing to make such motion); People v. Seymour, 255 AD2d 866, 868 (4th Dept. 1998), app. denied, 93 NY2d 902 (1999).

Second, counsel's failure to speak to potential witnesses identified by Defendant does not, without more, constitute ineffective assistance of counsel. People v. Lopez, 2006 NY Slip Op. 52547U, *9; People v. Session, 34 NY2d 254, 256 (1974). The affidavits submitted by Defendant in support of his motion from three purported "witnesses" state only that those persons had not been contacted by defense counsel; they fail to assert any facts they would have testified to on Defendant's behalf. Thus, Defendant has not shown that these purported witnesses would have been available for trial or would have provided any testimony favorable to the Defendant. Lopez at *9; Ford, 46 NY2d at 1023.

In sum, Defendant has failed to provide sufficient facts to support a claim that he did not receive meaningful representation. Indeed, the record demonstrates that, in the context of his guilty plea, Defendant, in fact, received meaningful representation in that he received an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel. People v. Jones, 18 AD3d 964, 965 (3rd Dept. 2005); People v. Boodhoo, 191 AD2d 448, 448 (2nd Dept. 1993); Saint Hilaire, 5 Misc 3d at 1023A.Accordingly, Defendant is not entitled to a hearing on the issue and his motion to vacate is dismissed. People v. Ferreras, 70 NY2d 630, 630 (1987); Session, 34 NY2d at 256; People v. Shields, 205 AD2d 833, 835 (3rd Dept. 1994).

B. Substitution of Counsel

Defendant's claim that the trial court's denial of his motion to substitute counsel, and for an adjournment to hire new counsel, created a coercive environment which [*4]induced him to plead guilty also has no merit.

The trial court properly exercised its discretion in denying Defendant's motion to substitute counsel on the morning of trial when, as here, Defendant demonstrated no "good cause" basis for such substitution. People v. Linares, 2 NY3d 507, 510 (2004). The transcript of the proceedings evidences that when Defendant requested an adjournment to hire another attorney, the Court properly considered the timing of Defendant's request, and noted that, at that stage of the proceeding, it was too late to substitute counsel. As no good cause existed to grant Defendant's application, the trial court properly denied it. Id. at 510-11; Transcript, December 15, 2009, pp. 2-3.

In this case, Defendant requested new counsel on the morning that trial was to commence. Moreover, Defendant's counsel had been retained by Defendant, not assigned; Defendant hired that attorney of his own choosing. If Defendant had been dissatisfied with the services of retained counsel, the proper remedy would have been to timely discharge that attorney and hire another. See People v. Wilburn, 40 AD3d 508, 509 (1st Dept. 2007). Defendant apparently hired his counsel on or about October 30, 2009; the trial was scheduled to commence December 15, 2009 — forty-five days later. Thus, within that forty-five days, Defendant had ample time to obtain new counsel.

Defendant's application for an adjournment and a substitution of counsel occurred only after the jury had already been sworn for his scheduled trial. The constitutionally guaranteed right to be defended by counsel of one's choice may not be used as a tactical device to delay judicial proceedings. People v. Gibson, 84 AD2d 885, 886 (3rd Dept. 1981); People v Terry, 115 AD2d 130,130 (3rd Dept. 1985).

Defendant's bare, general assertions to the trial court that, "I don't think that my attorney is prepared for this trial. . . . there is a lot of things we have not done. . . .[w]e haven't sat across the table and reviewed the file," were not specific and did not constitute "good cause" warranting an adjournment for new counsel to be retained. People v. Rodriguez, 166 AD2d 903, 903 (4th Dept. 1990).

Defendant's decision to wait until the morning that the trial was to begin - and after the jury already had been sworn - to request time to retain new counsel, the fact that Defendant had selected his own counsel and had sufficient time to substitute new counsel prior to that point, and Defendant's failure to articulate good cause for such substitution are proper bases upon which the trial court denied Defendant's motion for an adjournment and substitution of counsel. See People v. Swaby, 179 AD2d 793, 793 (2nd Dept. 1992).

Moreover, Defendant's claim that this denial created a coercive environment is belied by his allocution on the record which establishes that Defendant's plea was intelligent, knowing and voluntary. People v. Nichols, 21 A.D.3rd 1273, 1274 (4th Dept.), app. denied, 6 NY3d 757 (2005); People v. Allen, 301 AD2d 874, 875 (3rd Dept.), app. denied, 99 NY2d 652 (2003); People v. Ferreri, 271 AD2d 805, 805 (3rd Dept.), app. denied, 95 NY2d 834 (2000) After the Court had ruled on certain pre-trial issues and had already given the jury its preliminary instructions as to the trial, Defendant sought to enter a guilty plea. Before the Court even proceeded to allocute the Defendant, the Court inquired as to the veracity of Defendant's plea:

Court:Mr. Eliacin, I'm going to ask you some questions. [*5]

You swear you'll give me truthful answers?

Defendant: Yes, your Honor.

Tr. pp. 16-17.

At that time, the Court advised Defendant that, by pleading guilty, Defendant was waiving his right to trial, and to call witnesses, and to cross-examine the People's witnesses. Tr. at 17. The Court also advised Defendant that he could testify on his own behalf at trial. Tr. at 17. Defendant expressly denied that his plea of guilt was as a result of force or coercion or threat. Specifically, the Court asked Defendant if "anyone had threatened or forced Defendant to plead guilty," to which Defendant replied, "No, your Honor." Tr. at 17. Defendant allocuted to the elements of the crime and admitted that he had committed the crime. Tr. at 17. Defendant's statements to the Court evince an intelligent, knowing and voluntary waiver. Tr. at 16-17.

Thus, Defendant's own testimony evidences that there was no coercion or coercive environment. Accordingly, this portion of his motion also is denied.

The following papers were considered by the Court in deciding the motion: Notice of Motion, filed on May 28, 2010, and Affirmation of Lewis Mazzone, attorney for Defendant, in Support of Motion.

This constitutes the Decision and Order of this Court.

Dated: Bronx, New York

June 23, 2010

E N T E R:

_________________________

COLLEEN D. DUFFY

Supreme Court Justice Footnotes

Footnote 1: Although the first count of the accusatory instrument was a felony count, the count was dismissed by the People on November 30, 2009.

Footnote 2: Ordinarily, a motion to vacate will be made to the court which has taken the plea. See CPL 440.10(1). However, in this case, Judge Paynter is no longer sitting in Supreme Court, Criminal Division, Bronx County, and therefore it is appropriate for this Court to hear this motion to vacate. People v. Skinner, 154 AD2d 216, 217 (1st Dept. 1990), app. denied, 76 NY2d 796 (1990); People v. Alexander, 6 Misc 3d 1026A, 2005 NY Slip Op 50194U, *4 (Sup. Ct., Bronx Co.), app. denied, 2005 NY App. Div. LEXIS 9332 (1st Dept. 2005).

Footnote 3: The file reflects that the office of Robert T. Johnson, Bronx District Attorney, was served with Defendant's motion on May 4, 2010, via U.S. mail.