People v Lofton

[*1] People v Lofton 2013 NY Slip Op 50391(U) Decided on March 21, 2013 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2013
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Seth Lofton, Defendant.



12088C-2012



Appearances of Counsel:

Dennis Light, Esq.

Raneri, Light & Sarro, PLLC

Counsel for the Defendant

Bridget Barbera

Assistant District Attorney

Office of the Bronx County District Attorney

Richard Lee Price, J.

On December 16, 2010, judgment was entered against the defendant in Supreme Court, Bronx County (McGuire, J.), convicting him upon his plea of guilty to operating a motor vehicle under the influence of alcohol (VTL 1192 [3]), a class A misdemeanor. Defendant was immediately sentenced to a conditional discharge, the conditions being: imposition of a fine in the amount of $500, successful completion of a drunk driver program (DDP), installment of and participation in an ignition interlock program (IID), and the revocation of his license for a period of six months. No appeal was taken.

I. Background and Procedural History

On April 14, 2011, defendant was again arrested and charged with three counts of operating a motor vehicle under the influence of alcohol (VTL 1192 [3], [2], and 1192 [1]. Defendant now moves, by motion submitted November 9, 2012, to vacate the December 16, 2010, judgment of conviction pursuant to CPL 440.10 (1) (h) on the ground that it was obtained in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution and New York Constitution, article I, § 6. Specifically, defendant contends that he did not knowingly, intelligently, and voluntarily enter his guilty plea because the plea/sentencing court failed to advise him that doing so could subject him to a felony prosecution in the event he [*2]was charged with a second intoxicated driving offense. On December 7, 2012, this court issued a decision denying defendant's motion.

Immediately upon issuing it, defense counsel advised this court that he had not received the district attorney's affirmation opposing the motion. In response, this court recalled its decision and adjourned the matter until January 11, 2013, for counsel to review the district attorney's opposition.

By letter dated December 14, 2012, defendant specifically requested permission to file a reply "based on the People's contention that [d]efendant neither claims that his prior counsel was ineffective, nor alleges that his prior counsel failed to inform him of the collateral consequences of his guilty plea.'"

Granting defendant's request, this court instructed counsel to file his reply by January 11, 2013, which he did. In it, defendant, for the first time, claimed that the judgment of conviction was obtained in violation of his Sixth Amendment right to effective assistance of counsel based on plea counsel's failure to advise that a guilty plea would expose him to certain sentencing enhancements in the event he sustained a subsequent intoxicated driving conviction. The matter was then adjourned until January 23, 2013, for the People to sur-reply, which they did on January 22, 2013.

On January 23, 2013, this court adjourned the motion until March 29, 2013, for decision. After review of all the motion papers, papers on file with the court, and prior court proceedings, defendant's motion is denied.

II. Criminal Procedure Law § 440.10 (2), (3)

CPL 440.10 (1) provides that "[a]t any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment" based upon certain grounds (CPL 440.10). Such grounds include, but are not limited to, when "[t]he judgment was procured by duress, misrepresentation or fraud on the part of the court or a person acting for or in behalf of a court or a prosecutor" (CPL 440.10 [1] [b]), or when "[i]mproper and prejudicial conduct not appearing in the record . . . which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom" (CPL 440.10 [1][f]). The court must deny a motion to vacate a judgment, however, when

it is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal . . . [or] although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant'sunjustifiable failure to take or perfect an appeal during the prescribed period (CPL 440.10 [2] [b], [c]).

Here, defendant's claim is, at least in part, record based because he asserts that the court failed to advise him of potential sentencing enhancements upon a second DWI. Since this claim concerns defendant's lack of knowledge, it is based on the plea court's allocution, which is contained in the record. But because the key aspect of defendant's claim is his ignorance of sentencing enhancement consequences that were of such significance to him, it involves a matter outside the record. What defendant proffers, then, is in essence a "mixed" claim. Such a claim is [*3]not threatened by CPL 440.10 (2) since it cannot be said that sufficient facts appear on the record with respect to the ground raised upon the motion to permit adequate review of such an appeal (People v Maxwell, 89 AD3d.1108 [2011]). CPL 440.10 is, therefore, the appropriate forum for entertaining defendant's claim.

The People also oppose defendant's ineffective assistance of counsel claim pursuant to CPL 440.10 (3) (c), which provides that a "court may deny a motion to vacate a judgment when [u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so" (see CPL 440.10 [3] [c]).

Admittedly, defendant first raised an allegation of ineffective assistance of counsel in his reply to the People's opposition. Surely, he had access to the same information then as he does now, nor does he offer any explanation for such failure other than the fact that People highlighted it. And while it is difficult to imagine that he was not "in a position to adequately raise" such claim in his moving papers, this court finds no legitimate reason why it should not be considered. Thus, in the interest of justice, it will be.

III. Plea/Sentence Court's Failure to Inform

Defendant's claim that he is entitled to have his conviction vacated is without merit. A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, understands and appreciates the circumstances of the plea and its consequences(North Carolina v Alford, 400 US 25 [1970]). While there is no particular litany of questions that must be asked when allocuting a defendant, due process requires the record to clearly demonstrate the plea represents a voluntary and intelligent choice among the alternative courses of action (Alford, 400 US at 31; People v Ford, 86 NY2d 397, 403 [1995]).

Certainly, a defendant is entitled to an explanation by the court of a plea's direct consequences, meaning those that have definite, immediate, and largely automatic effects on his punishment. He is not, however, entitled to an explanation of potential collateral consequences of a conviction (People v Catu, 4 NY3d 242, 244 [2005]). The reason is that collateral consequences are peculiar to the defendant, and generally result from actions that the court does not control (Ford, 86 NY2d at 403). Requiring otherwise would place an impractical and unjustified burden on the courts (see People v Wilson, 81 Misc 2d 739, 741 [Dist Ct, Nassau County 1975, Fertig, J.]).

In fact, the defendant concedes that enhanced criminal treatment for a subsequent offense is indeed a collateral consequence of the plea about which a court need not advise the defendant (People v Lancaster, 260 AD2d 660 [1999]; People v Depeyster, 115 AD2d 613 [1985]). As such, the court's failure to disclose that he may be subject to a felony prosecution and sentence enhancement for a second DWI offense does not render his plea involuntary, or entitle him to vacatur of his conviction.

That said, the Court of Appeals has noted there may be cases, albeit rare, when nondisclosure of a collateral consequence of conviction entitles a defendant to withdraw the plea. (see People v Gravino, 14 NY3d 546 [2010]). But the mere labeling of such a consequence as collateral does not. Only where a defendant can convincingly show that "he pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such [*4]great importance to him that had he known of the information at the time of plea he would have made a difference decision," may a court permit him to withdraw the plea (Gravino, 14 NY3d at 559).

Gravino involved the nondisclosure of two consequences stemming from sex crime convictions: required registration as a sex offender under the Sex Offender Registration Act (SORA) and prohibited association with children under the age of eighteen, including those of the defendant. The Gravino Court, although stating that such collateral consequences imposed significant burdens on the defendant, held that the plea court had no duty to include them in its plea allocution since neither qualified as a rare circumstance (Gravino at 556, 559). Notably though, while their discussion of exceptional collateral circumstances is relevant in determining whether a defendant's guilty plea is knowing and voluntary, it was not part of its holding; as such, it is not binding on this court.

Assuming Gravino establishes the right to withdrawn a guilty plea upon the nondisclosure of collateral consequences, which it does not, it would be limited to circumstances "where defendant promptly moves to withdraw his plea after newly discovering information, and he can convincingly show that the new, information, if known at the time of the plea, would have caused a change of heart" (Gravino at 559 [emphasis added]). Here, defendant neither promptly filed his motion to vacate after learning of the enhancement consequences, nor convincingly demonstrated that had he known of such sentence enhancement, he would not have entered the guilty plea.

A. Burden of Proof

Defendant offers no evidence or explanation that he would not have entered the plea had he known that doing so would subject him to a felony prosecution and enhanced sentencing upon a second DWI arrest. In his supporting affidavit, defendant states "had I known I was pleading guilty to a crime that would subject me to enhanced sentencing and potential imprisonment, I would not have accepted the earlier plea deal and pled guilty" (Affirmation of Defendant ¶10). Aside from his self-serving declaration that he has a drinking problem with which he continuously struggles such that he does not trust himself "to keep this disease in check for ten years," he offers no elaboration, elucidation, or evidentiary support (Affirmation of Defendant ¶¶8,10).

Moreover, defendant's assertion that alcoholism precluded him from trusting his ability to abstain from drinking and driving somehow parlays into his plea being unknowing or involuntary because it was "dooming himself" to enhanced sentencing consequences and imprisonment belies logical reasoning. The inability to control one's drinking is entirely separate and distinct from controlling one's driving while intoxicated. And after all, as the record indicates, the defendant knowingly agreed to have an IID installed in his car, the purpose of which is to prevent exactly that. It is also not lost on this court that despite his ongoing battle with alcoholism, defendant's consent to the IID condition strongly supports the inference that he would have accepted the plea regardless of any potential sentence enhancement. By doing so, he knowingly risked failing IID breath tests, voluntarily exposed himself to incarceration as a result of revocation of the conditional discharge, and receiving a violation of probation proceeding for noncompliance with the IID conditions. [*5]

B. Timeliness

Assuming defendant did not become aware of the sentencing enhancement consequences until his second DWI arrest on April 14, 2011, it was sixteen months before he moved to vacate his conviction — hardly qualifying as promptly doing so after such discovery. But his claim that he did not learn of such collateral consequences until then is dubious at best. Documents contained in the court file reflect that by March 1, 2011, defendant had completed a New York State Department of Motor Vehicles "Drunk Driver Education" program, which is, among other things, designed to advise defendants convicted of DWI crimes of the penal consequences and societal dangers of recidivist drunk driving (VTL 1196 [1]; (People v Lopresti, 30 Misc 3d 1231[A] [Sup Ct, Bronx County 2011, Fabrizio, J.]). Moreover, since a prior conviction is an indispensable element of the felony DWI charge defined in the Vehicle and Traffic Law, everyone, including the defendant, is deemed to be on notice of it, regardless of whether or not counsel or the court specifically says so (People v Dugan, 188 AD2d 927, 928 [1992]; see Lopresti, 30 Misc 3d 1231[A]; see also People v Santana, 117 Misc 2d 1016 [1983] [Sup Ct, Bronx County, Goldfluss, J.] [defendant presumed to know the law prohibiting the act and consequences arising from its commission]).

As the defendant acknowledges, his "situation is not altogether unique" (Defendant's Memo, p.4; Exhibit D), a fact in and of itself that indicates it unlikely qualifies as a Gravino exception such that the collateral consequences would rise to the status of being relevant in determining whether to vacate the plea. To be sure, given both the frequency and gravity of DWI recidivism, it may indeed be wise for a court to include any sentence enhancement consequences associated with the conviction in its plea allocution, if for no other reason then to fully effectuate its deterrence purposes. That said, it is under no constitutional duty to do so.

IV. Ineffective Assistance of Counsel

A. CPL 440.30 (4) - Failure to Allege Issues of Fact

As a preliminary matter, defendant's ineffective assistance of counsel claim is entirely unsubstantiated. CPL 440.30 (4) provides that the court may, upon considering the merits of the motion, deny it without a hearing if the motion is based upon essential facts without sworn allegations substantiating or tending to substantiate them, or an allegation of fact essential to support the motion is either contradicted by a court record or other official document, or made solely by the defendant unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true (see CPL 440.30 [4] [b]; CPL 440.30 [4] [d] [i], [ii]). A judgment of conviction is presumed valid, and a defendant moving to vacate his judgment has the burden of coming forward with sworn allegations sufficient to create an issue of fact (see CPL 440.30 [4] [b], [d] [i], [ii]; see People v Session, 34 NY2d 254, 255-256 [1974]; People v Richetti, 302 NY 290, 298 [1951]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]).

Here, the defendant failed to meet his burden. None of the defendant's papers contain sufficient allegations to substantiate his claims. When a motion to vacate a conviction alleging ineffective assistance of counsel is submitted without an affirmation from former defense counsel, such omission is not fatal; however, an omission or a lack of explanation for the omission may be considered by a court in denying the motion without a hearing (see People v Scott, 10 NY2d 380, 382 [1961]). [*6]

Defendant alleges that he received ineffective assistance of counsel through his attorney's (Edward Char) statements and actions. He does not, however, provide the court with an affidavit from Mr. Char supporting his claim, nor does he provide any good faith explanation for his failure to do so (see CPL 440.30 [4] [b]; see Scott, 10 NY2d at 382 ["It was not error to have insisted that petitioner obtain an affidavit from this lawyer who is living and available, as a minimum earnest of good faith to justify the granting of a hearing. If he had applied to this lawyer and the lawyer had declined to comply with a request for an affidavit, there would be time enough to consider whether to grant a hearing at which the lawyer's attendance might be compelled by compulsory process."]). And while the defendant recalled a specific minute portion of his conversations with Mr. Char, he asks this court to rely solely on a personal affidavit, which in no way provides the support needed to substantiate the defendant allegations. Accordingly, the defendant's unsubstantiated claims, without further evidence, are insufficient to meet his burden of proving that counsels' performance was ineffective (CPL 440.30 [4] [d] [i], [ii]).

B. Federal and New York Standards

Under the federal test for ineffective assistance of counsel, as put forth in Strickland, a reviewing court must engage in a two-prong analysis: (1) was counsel's performance deficient by falling below an "objective standard of reasonableness" as judged by the prevailing norms of practice, and (2) whether a defendant suffered actual prejudice as a result of that deficiency; whether or not "but for counsel's unprofessional errors, the result of the proceedings would have been different (Strickland v Washington, 466 US 688, 694 [1984]).

Success of an ineffective assistance of counsel claim under Article I, § 6, of the New York State Constitution depends on whether counsel's performance "viewed in totality and at the time of representation, reveal[s] that the attorney provided meaningful representation. . ." (People v Baldi, 54 NY2d 137, 147 [1981]; see also People v Henry, 95 NY2d 563, 565 [2000]). Like the performance prong in Strickland, New York law provides that "a defendant must show that his attorney's performance fell below an objective standard of reasonableness" (Rosario v Ercole, 601 F3d 118, 124 [2d Cir 2010]; see also People v Turner, 5 NY3d 476, 480 [2005]).

Generally, trial counsel is presumed to have provided competent representation unless defendant demonstrates the absence of a "strategic or other legitimate explanation" for the allegedly deficient conduct (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Rivera, 71 NY2d 705, 709 [1988]). An attorney's performance "will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented" (People v Berroa, 99 NY2d 134, 138 [2002]). Therefore, a "claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (Benevento, 91 NY2d at 714).

In addition to demonstrating that counsel's performance fell below an objective standard of reasonableness, a claim for ineffective assistance of counsel under the Sixth Amendment of the United States Constitution requires the defendant to also establish that he was prejudiced by such deficient performance (Strickland, 466 US at 687). Prejudice is established when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding [*7]would have been different" (Strickland at 694). A reasonable probability exists where the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result (Lockhart v Fretwell, 506 US 364, 370-372 [1993]).

Unlike the second prong of the federal standard, however, which accounts for the advice's effect on "the result of the proceedings", the New York test poses a question of "whether the attorney's conduct constituted egregious and prejudicial' error such that [the] defendant did not receive a fair trial" (Benevento at 713. As such, the New York standard is "more generous to defendants" than the federal standard because "even in the absence of a showing that but for counsel's errors the outcome would be different, a defendant may still have an ineffective assistance claim under New York's constitution" (emphasis added) (Rosario, 601 F3d at 125; see also People v Ozuna, 7 NY3d 913, 915 [2006]); Turner, 5 NY3d at 480; People v Caban, 5 NY3d 143, 155-56 [2005]; People v Stultz, 2 NY3d 277, 284 [2004]; Benevento at 713-14 [1998]). Effective assistance of counsel then, is meaningful representation, not perfect or error free representation (Ford, 86 NY2d at 404, quoting People v Modica, 64 NY2d 828, 829 [1985]). Nor should hindsight transform certain tactical errors into ineffective assistance of counsel (Baldi at 151; see People v Jackson, 52 NY2d 1027 [1981]).

In the context of a guilty plea, defendant must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" (Premo v Moore, 131 SCt 733, 737 [2011] quoting Hill v. Lockhart, 474 US 52, 59, 106 SCt 366, 88 LEd2d 203). "[A] defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (Ford at 404).

Here, as noted above, defendant offers no evidentiary support for his self-serving claim that "had I known I was pleading guilty to a crime that would subject me to enhanced sentencing and potential imprisonment, I would not have accepted the earlier plea deal and pled guilty", other than not trusting himself "to keep this disease in check for ten years" (Affirmation of Defendant ¶¶8,10). He employs the same reasoning regarding counsel's alleged failure to advise him that he would be subjected to felony prosecution if charge with a second DWI offense. There are two problems with this reasoning: a complete lack of authority that counsel was under a duty to make such a disclosure, and as previously observed, the mutual exclusivity of keeping his alcoholism "in check" and trusting his ability to abstain from drinking and driving. In fact, notwithstanding defendant's speculative assertion that he would not have received an incarceratory sentence had he been found guilty after trial, the fact is that he was exposed to such a possibility. It could even be argued that the probationary sentence plea counsel negotiated was highly advantageous since it would impose conditions to assist the defendant in keeping himself "in check."

Accordingly, it is patently clear that defendant's claims fail under both the federal and state standards for ineffective assistance of counsel, as he failed to demonstrate a reasonable probability that but for counsel's alleged errors, he would not have pleaded guilty. Moreover, nothing in the record casts doubt on the ostensible effectiveness of counsel.

Conclusion[*8]

For the reasons stated above, this court finds that the defendant's guilty plea was knowingly, voluntarily and intelligently entered. Defendant's motion to vacate his judgment of conviction pursuant to CPL 440.10 (1) (h) is therefore denied in all respects.

This constitutes the decision and order of the court.

Dated: March 21, 2013

E N T E R

________________________________

Richard Lee Price, J.S.C.