People v Chan
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People v Chan 2013 NY Slip Op 31366(U) June 10, 2013 Supreme Court, Kings County Docket Number: 4002/09 Judge: Martin P. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Decision and Order Indictment 4002/09 -against- CPL 440 Decision CHRISTOPHER CHAN Defendant moves, pro se, to vacate his judgment of conviction and his sentence pursuant to CPL sections 440. I O and 440.20 on the grounds that he received ineffective assistance of counsel; that the court s plea allocution was factually insufficient; and that his sentence constituted cruel and unusual punishment. For the following reasons, defendant s motion is DENIED. On May 2, 2009, defendant entered the Fu Xing Grocery Store with co-defendants Jonathan Hernandez and Ching Wu. Defendant was carrying an electric stun gun. Defendant then placed Ju Lin, a store employee, in a choke hold and held the slun gun to his neck, stunning him and causing him to fall to the ground. Defendant continued to hold Lin in a choke hold while co-defendant Wu kicked him in the chest and stomach. Meanwhile, co-defendant Hernandez held an air pistol to the head ofXiuyi Chen, who was eight months pregnant at the time. Hernandez repeatedly demanded money from Chen and struck her in the head and hands with the air pistol. He then held the air pistol to her stomach and demanded to know whether she wanted to have her baby. In compliance with Hernandez s demands, Chen handed over $ I , 600 in cash from a box behind the store s counter. Hernandez also took a box of quarters valued at -1- [* 2] $400, lottery tickets worth $100, and a laptop. He placed the stolen items in a black duffle bag and fled with his co-defendants. Within minutes, police stopped their vehicle and arrested the three occupants. A stun gun and an unloaded air pistol were recovered fiom the vehicle. Defendant, Hernandez and Wu all gave statements admitting their various roles in the robbery. For his participation in the robbery, defendant was charged under Indictment 4002/09 with one count of robbery in the first degree; four counts of robbery in the second degree ; one count of robbery in the third degree; two counts of assault in the second degree; two counts of assault in the third degree and two counts of criminal possession of a weapon in the fourth degree. On July 1, 2010, defendant, represented by Curtis Farber, Esq., pleaded guilty to attempted robbery in the first degree in full satisfaction of the indictment and in exchange for a promised sentence of four years imprisonment to be followed by five years post-release supervision. At the plea proceeding, defendant stated that he was satisfied with the representation provided by counsel and that he was pleading guilty voluntarily. On September 13, 2010, defendant was sentenced to the promised sentence of four years imprisonment, followed by five years post release supervision. (Murphy, J. at plea and sentence). Defendant failed to take a direct appeal from the judgment of conviction. Defendant now challenges the conviction and sentence, arguing that he was treated unfairly because he was the least culpable among all the robbers... According to defendant, counsel should have moved to dismiss the top count of the indictment and negotiated the same -2- [* 3] favorable plea agreement that defendant alleges co-defendant Hernandez received. Whether or not counsel filed a motion to dismiss the first count of the indictment is a matter of record that defendant could have raised on direct appeal and is thus barred from collateral review. CPL 440. IO[2J[c] ;also see People v Cooks, 67 NY2d 100 [19861. Similarly, as to defendant s assertion that counsel failed to negotiate a favorable plea bargain is procedurally barred because it is contradicted by the court record and there is no reasonable probability that it is true. CPL 440.30[4][d]. According to the record, counsel negotiated a plea in July, 2009 in which defendant would plead guilty to attempted robbery in the second degree in exchange for a sentence of two and one-half years of incarceration and three years post release supervision. That offer, which was identical to the one made to co-defendant Hernandez, remained available to defendant for several months. Defendant, however, elected instead to reject that offer, at which point the People withdrew it. Defendant further claims that his plea was not knowing, voluntary and intelligent because the court failed to ensure that he was knowingly waiving an allegedly affirmative defense that the weapon was inoperable. In his moving papers, defendant states that the weapon employed during the robbery was an unloaded bb-gun and he suggests that such a weapon did not constitute a dangerous instrument under the Penal Law. However, the court record reveals that defendant admitted that, in the course of committing the instant robbery or in his immediate flight therefrom, he or one of his co-defendants threatened the immediate use of a dangerous instrument, namely, a stun gun. Thus, there is no evidence to support defendant s bare allegation that the weapon was a bb-gun. Moreover, sufficient facts appear on the record of the -3- [* 4] plea proceeding to have permitted review of this claim on appeal, yet defendant failed to challenge the sufficiency of the plea allocution before an appellate court.; this claim is thus procedurally barred pursuant to CPL 440.10(2) (c,. The claim that defendant unknowingly waived an affirmative defense based upon the inoperability of the weapon also appears to rest on defendant s misapprehension of the particular statute under which he was charged. Defendant pleaded guilty to attempted first-degree robbery pursuant to PL 160.15(3), based upon the use of a stun gun, a dangerous instrument which proved to be in and operable condition, during the course of the robbery. That statutory provision, ie.,PL 160.15(3) does not provide for the potential applicability of any affirmative defense(s). The defense to which defendant refers is potentially applicable to a conviction under PL 160.15 (4) and thus was inapplicable to him. Finally, defendant s sentence did not constitute cruel and usual punishment. Defendant argues that his sentence was cruel and unusual because co-defendant Hernandez received a lesser sentence, despite his allegedly playing a greater role in the robbery. Defendant also maintains that he received a longer sentence because he did not accept a plea offer as quickly as Hernandez. Under CPL 440.20(1), a sentence may be set aside upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law. CPL 440.20(1) does not encompass claims of harshness or excessiveness which must be raised on appeal. People v Cunningham, 305 AD2d 516 [2ndDept 20031. Regardless of its length, a sentence that is within the limits of a valid statute does not ordinarily constitute cruel and unusual punishment, absent exceptional circumstances. See People v Jones, 39 NY2d 694 [1976]; also People v Brathwaite, 263 -4- [* 5] AD2d 89 [2nd Dept,2000]. Here, defendant has failed to demonstrate any exceptional circumstances that warrant vacatur o f his sentence. Defendant s sentence, which he accepted only after first rejecting a better offer, was the result of an advantageous plea bargain. Had he been convicted of firstdegree robbery after trial, defendant would have faced a potential prison term o f f v e to twentyfive years. The imposed sentence offour years for attempted first-degree robbery was also much lower than the potential statutory maximum offifteenyears. Moreover, contrary to defendant s assertions, equal protection does not require identity of treatment and defendant was not entitled to receive a sentence identical to that o f his co-defendant .People v Miller, 74 AD3d Dept., 19861 [ co-defendants need 1097 [2nd Dept., 20101; People v Semkus, 122 AD2d 287 [2nd not be sentenced equally ]. Accordingly, defendant s vacatur motion is DENIED in its entirety without a hearing. This decision shall constitute the order of the court. -5- [* 6] You are advised that your right to an appeal fiom the order determining your motion is not automatic except in the single instance where the motion was made under CPL 440.30(1-u) for forensic DNA testing of evidence. For all other motions under Article 440, you must apply to a Justice of the Appellate Division for a certificate granting leave to appeal. This application must be filed within 30 days after your being served by the District Attorney or the court with the court order denying your motion. The application must contain your nume and address, indictment number, the questions of law or fact which you believe ought to be reviewed and a statement that no prior application for such certificate has been made. You must include a copy of the court order and a copy of any opinion of the court. In addition, you must serve a copy of your application on the District Attorney. APPELLATE DIVISION, 2ND Department 45 Monroe Place Brooklyn, NY 11201 Kings County Supreme Court Criminal Appeals 320 Jay Street Brooklyn, NY 11201 Kings County District Attorney Appeals Bureau 350 Jay Street Brooklyn, NY 11201 -6-
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