People v John

[*1] People v John 2018 NY Slip Op 50455(U) Decided on April 5, 2018 Supreme Court, Kings County Quinones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 5, 2018
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Daquan John, Defendant.



10881/2008



For the People: Marie John-Drigo, Esq., Kings County District Attorney's Office

For Defendant: Daquan John, Pro Se
Joanne D. Quinones, J.

By pro se motion, Defendant makes a second application, pursuant to Criminal Procedure Law (CPL) section 440.10, to vacate the judgment of conviction on the grounds that 1) he was denied effective assistance of counsel and 2) the court failed to conduct further inquiry of Defendant's guilty plea after receiving Defendant's pre-sentence report. For the reasons set forth below, Defendant's motion to vacate his judgment of conviction is denied in its entirety.

PROCEDURAL HISTORY

Defendant was charged with one count each of Murder in the Second Degree, in violation of Penal Law (PL) section 125.25(1), Assault in the First Degree, in violation of PL section 120.10(1), Assault in the Second Degree, in violation of PL section 120.05(1), and two counts of Criminal Possession of a Weapon in the Second Degree, in violation of PL sections 265.03(1)(b) and 265.03(3), for an incident that occurred on July 5, 2008. On April 11, 2011, Defendant pled guilty before another Justice of this court to the charges of Murder in the Second Degree and Assault in the First Degree in full satisfaction of the indictment. In exchange for his plea, Defendant was promised a sentence of 15 years to life in prison on the murder count, which was the minimum period of incarceration permissible by law for the crime of Murder in the Second Degree, to run concurrent with a sentence of fifteen years in prison plus five years of post-release supervision on the assault count.

On the date of his plea, the court ordered a pre-sentence investigation report and the Defendant was interviewed by the Department of Probation in connection with that report. In the section of the report entitled, Summary of Defendant's Statement, the interviewer wrote "The defendant admits guilt in the instant offense. He states that he pled guilty because he did not want to get more jail time. He declined to give a statement in regards to his participation." (see [*2]Pre-Sentence Investigation Report, p 2)

On November 21, 2011, Defendant, through counsel, filed a motion for an order allowing him to withdraw his plea on the grounds that he was denied effective assistance of counsel, that his guilty plea was not knowingly, intelligently or voluntarily made, and that the plea allocution was factually insufficient to establish his guilt of the crime of Murder in the Second Degree. By written decision dated January 26, 2012, a Justice of this court denied Defendant's motion. Prior to sentence on January 27, 2012, the court allowed defense counsel an opportunity to review the probation report and gave the People, defense counsel and Defendant an opportunity to be heard. Defense counsel, after stating that Defendant "at this juncture denied his guilt," relied on the promised sentence, but advised the court that Defendant would be appealing the court's decision (see Sentencing Minutes, 1/27/12, p 2, lines 17-25). When asked whether he wished to be heard, Defendant shook his head no (id. at p 3, lines 2-5). The court then sentenced Defendant as promised. Defendant subsequently filed an appeal.

By written decision dated June 12, 2013, the Second Department affirmed the judgment finding that "there was no proof that the defendant's plea was involuntarily or unintelligently entered" and that "there was no legitimate question as to the voluntariness of the plea" (see People v John, 107 AD3d 824, 824-825 [2nd Dept 2013]). As to Defendant's ineffective assistance of counsel claim, the Appellate Division reasoned that because the claim was "predicated, at least in part, on 'matters that are outside the record,' " the claim should be raised in a motion under CPL article 440 (id. at 825).

In 2014, Defendant filed a pro se motion, pursuant to CPL 440.10, for an order vacating his judgment of conviction on two grounds: (1) his plea was not knowingly, intelligently, or voluntarily made and (2) he was denied the effective assistance of counsel. By written decision dated November 24, 2014, a Justice of this court denied Defendant's motion in its entirety. With respect to the first ground, because the Appellate Division had already determined the claim on the merits, the motion was denied as procedurally barred. As to the second ground, the court, considering the totality of the circumstances, found that Defendant received effective, meaningful representation and denied his application. Defendant then moved for leave to appeal the court's decision. On April 15, 2015, the Appellate Division denied Defendant's application for leave to appeal.

On May 18, 2015, Defendant moved pro se in the US District Court for the Eastern District of New York for a writ of habeas corpus. His writ was based in part on an ineffective assistance of counsel claim. On February 11, 2016, following a hearing, Defendant's habeas petition was denied.

Approximately one year later, Defendant filed the instant motion, his second 440 motion before this court.

DISCUSSION

With respect to Defendant's claim that his judgment of conviction should be vacated because he was denied effective assistance of counsel, this claim has already been addressed — first by another Justice of this court in a written decision dated November 24, 2014, by the Appellate Division who on April 15, 2015 denied Defendant's application for leave to appeal that decision, and finally, by the US District Court, Eastern District in 2016. As such, Defendant's claim is procedurally barred since this claim has been "previously determined on the merits" and there has not been any change in the law controlling the issue (see CPL §§ 440.10 [2][a] and [3][b]).

The court will now address Defendant's claim that the judgment of conviction should be vacated because the court failed to conduct further inquiry of his guilty plea after receiving the Department of Probation's pre-sentence report. Defendant contends that the statement in the report, that "he pled guilty because he did not want to get more jail time", is a denial of guilt which mandated further inquiry by the court and that the court's failure to do so warrants vacatur of his judgment of conviction or an evidentiary hearing to determine the issue. In support of his position, Defendant relies on People v Lopez, 71 NY2d 662 (1988). During the plea allocution in Lopez, the defendant raised the possibility of a justification defense and the possibility that he lacked the requisite criminal intent (Lopez, 71 NY2d at 664). The Court of Appeals held that "where the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea, ... the trial court has a duty to inquire further to ensure that defendant's plea was knowing and voluntary" (id. at 665). Lopez, however, is distinguishable from the instant case.

Here, unlike in Lopez, Defendant's plea allocution did not cast any doubt, significant or otherwise, upon his guilt of the crimes nor did it call into question the voluntariness of his plea (People v Pollidore, 123 AD3d 1058, 1059 [2nd Dept 2014]). The transcript of the plea minutes establishes that Defendant admitting to using a gun to cause the death of Kitson George and to injure Nellie Jean (see Plea Minutes, 4/11/11 [Plea], p 3, line 24 - p 4, lines 12). The plea minutes further reflect that Defendant was advised of the constitutional rights he was "giv[ing] up" by pleading guilty (id. at 5, line 13 - p 6, line 14). Additionally, Defendant's claim that his plea was not knowingly, intelligently or voluntarily made is procedurally barred, since this claim has been "previously determined on the merits" by another Justice of this court as well as the Appellate Division and the US District Court, Eastern District (see CPL §§ 440.10 [2][a] and [3][b]).

Although Defendant's assertion that the court failed to conduct further inquiry of his guilty plea after receipt of the probation report is a new assertion made for the first time in the instant motion, his second 440 motion before this court, his application must nevertheless be denied. CPL section 440.10 states, in pertinent part:

2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate judgment when:(c) 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's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.

Defendant was interviewed by the Department of Probation on April 11, 2011. On January 26, 2012, the defense reviewed the pre-sentence report which indicated that Defendant "states that he pled guilty because he did not want to get more jail time." Defendant, however, did not raise this issue of the court's alleged failure to conduct a further inquiry in his appeal to the Appellate Division. Because there are sufficient facts on the record for Defendant's allegations to have been raised on his direct appeal or in his first 440 motion, his unjustifiable failure to raise them requires dismissal of his motion (CPL §§ 440.10 [2][c] and [3][c]).

Finally, contrary to Defendant's contention, the statement "that he pled guilty because he did not want to get more jail time" does not constitute a denial of guilt. Significantly, that [*3]statement in the probation report is immediately preceded by the statement "The defendant admits guilt in the instant offense." Additionally, Defendant's statement that he did not want to get more jail time is not inconsistent with the statements he made at the time of his plea. The plea minutes reflect that prior to entering a plea of guilty, the trial court advised Defendant that if he "wanted to take a plea to the top count, [the court] would sentence [him] to the minimum under the law, which is 15 to life." Defendant indicated that he wanted to take the plea (see Plea at p 3, lines 19-20] and indicated that he had not been threatened or forced to plead guilty and that he was pleading guilty of his own free will ( id. at p 5, lines 4-9). Additionally, on the date of the plea, defense counsel stated on the record that "all possible defenses were discussed" (id. at p 7, lines 4-7). Moreover, because the post-plea statements attributed to Defendant in the probation report did not call into question the voluntariness of the plea, the court was not required to conduct a sua sponte inquiry (Pollidore, 123 AD3d at 1059; People v Appling, 94 AD3d 1135 [2nd Dept 2012]; People v Kelly, 50 AD3d 921 [2nd Dept 2008]). Therefore, Defendant's motion to vacate his judgment of conviction on the grounds that the court failed to conduct further inquiry into the basis of his plea is denied.

This constitutes the decision and order of the court.

Dated: April 5, 2018

Brooklyn, New York

Joanne D. Quiñones, A.J.S.C.

Right to appeal:

You are advised that your right to an appeal from the order determining your motion is not automatic except in the single instance where the motion was made under C.P.L. section 440.30(1-a) 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. THE APPLICATION MUST BE SENT TO THE APPELLATE DIVISION, SECOND DEPARTMENT, 45 MONROE PLACE, BROOKLYN, NY 11201. In addition, you must serve a copy of your application on the Kings County District Attorney, Renaissance Plaza, 350 Jay Street, Brooklyn, NY 11201. Do NOT send notice of appeal to the Supreme Court Justice who decided this motion.

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 name and address, indictment number, the question 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.