PEOPLE v. DeBIASO (2005)

The defendant has made a motion pursuant to Section 440.10(1) (b, c, d, f and h) of the New York State Criminal Procedure Law seeking to have a prior conviction and sentence from 2003 vacated.

Coram nobis, or 440 motion, is a motion of last resort.   It is a failsafe mechanism devised by the law to enable a defendant to have (if he can convince a judge that his claim may have merit) an opportunity for a review when absolutely no other avenue of review lies or ever laid open to him.

Precisely for this reason, the statute makes it the Court's first order of business, upon receipt of such a 440 motion, to determine if “[n]otwithstanding the provisions of subdivision one, the court must (emphasis added) deny [the] motion to vacate a judgment.”  [See section 440.10(2) CPL.]

 Subsection (b) of 440.10(2) CPL indicates one such circumstance that so mandates a denial without a hearing, which is “when:

(c) The judgment 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”

Defendant's case here is currently pending appeal upon a notice filed May 26, 2004.   All issues raised in the motion should be adequately preserved in the record and available for such normal appellate review as may remain.   For this reason, this 440 motion must be denied and no hearing is necessary in this matter.

The defendant's 440 motion is denied in all respects.

Additionally it should be noted that defendant entered guilty pleas to two separate accusatory instruments.   He was originally charged with the class D-felony of third-degree criminal possession of a weapon under Indictment 2002-434 and with the class E-felony of possession of a sexual performance by a child under SCI 2002-434(A).  {He admitted a prior sexual misconduct (A-misdemeanor) conviction from Erie County in 1991 [Plea transcript pages/lines 11/20;  and see the November 20, 2002 Information pursuant to CPL 200.60] and to an additional prior sexual conviction in his past [Sentence transcript 16/19;  Plea 15/11].} He could have received a maximum of seven years on the first and four years on the second, consecutively yielding a total maximum of eleven years.

Defendant, represented by able and experienced counsel, was able to negotiate a plea to two class E-felonies.   He received a sentence of one-to-three years on both pleas, consecutively yielding a total maximum of six years on June 13, 2003.

As part of his plea, the defendant waived his rights to appeal.   Such waivers are reflected in both the transcripts of the pleas [Plea 5/3, 9/22, 14/8, and 21/24] and the sentencing [Sentence 10/8], as well as in two separate written waivers, one for each case. [See attached Addendum for copies of these written waivers.]  {NOTE:  Addendum not included in published version.}

As the plea transcripts confirm, this defendant's pleas were knowingly and voluntarily entered after being fully advised of all his rights.   He made his decisions to plead guilty after full consultation with counsel.   He expressly and repeatedly indicated his satisfaction with counsel's representation [Plea 6/15, 8/24, 20/14 and 21/6].   These pleas were voluntary.   His waivers of his appeal rights were likewise voluntary.  [See, People v. Leroy, 308 A.D.2d 639, 764 N.Y.S.2d 366 (3rd Dept.2003) and People v. Korona, 197 A.D.2d 788, 603 N.Y.S.2d 88 (3rd Dept.1993).]

 When a defendant knowingly, intelligently, and voluntarily waives his right to appeal as part of a plea agreement, such waiver will be given full force and effect [People v. Aponte, 212 A.D.2d 157, 159, 629 N.Y.S.2d 773, 775 (2nd Dept.1995) ].   The only appeal rights he retains, despite such valid waiver, are strictly limited to those rare instances that violate a statute or contravene a public policy and are jurisdictional in nature, affecting the very organization of the court or the mode of proceedings prescribed by law.   The cases indicate that this includes the right to challenge the legality of the sentence (for example, if the court imposes a sentence beyond the maximum allowed by law), the right to challenge a violation of the constitutional right to a speedy trial and the right to challenge his competency to stand trial.  [See, People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022 (1989);  People v. Muniz, 91 N.Y.2d 570, 574, 673 N.Y.S.2d 358, 361, 696 N.E.2d 182 (1998) and People v. Hansen, 95 N.Y.2d 227, 231, 715 N.Y.S.2d 369, 738 N.E.2d 773 (footnote two), 95 N.Y.2d 227, 715 N.Y.S.2d 369, 372, 738 N.E.2d 773 (2000). Also cf., People v. Jandrew, 101 A.D.2d 90, 475 N.Y.S.2d 906 (3rd Dept.1984) (suppression arguments cannot be raised after waiver of appeal ) and, in accord, see People v. Haupt, 16 A.D.3d 1079, 791 N.Y.S.2d 801 (4th Dept.2005);  People v. Bennett, 12 A.D.3d 1177, 784 N.Y.S.2d 427 (4th Dept.2004) and People v. Simms, 269 A.D.2d 788, 703 N.Y.S.2d 777 (4th Dept.2000).]   All other claims are extinguished by a valid waiver of appeal [cf., People v. Hilligas, 291 A.D.2d 926, 738 N.Y.S.2d 274 (4th Dept.2002) and People v. Marziale, 182 A.D.2d 1035, 583 N.Y.S.2d 36 (3rd Dept.1992) ].

By filing this 440 motion, the defendant is attempting to circumvent his waiver of appeal and do indirectly what he cannot do directly.   Although not the same as an appeal in many ways, for these purposes a 440 motion (like other post-judgment relief vehicles) “is in the nature of an appeal” [People v. Ramsey, 2001 WL 1875965, 2001 N.Y. Slip Op. 50142(U) (Sup.Ct.2001) ] since it asks for a review after conviction of determinations made prior to conviction in an attempt to undermine the conviction.

 The same rationale that has led the courts to conclude that a valid appeal waiver eliminates a defendant's right to raise most issues on appeal applies with equal force to 440 motions.   A plea is a bargain fairly made that should signal an end to litigation, not a beginning [People v. Seaberg, 74 N.Y.2d 1, 7-8, 543 N.Y.S.2d 968, 970, 541 N.E.2d 1022 (1989) ]. The final and prompt conclusion of litigation is an important goal of public policy in criminal as well as civil litigation.   The negotiating process serves little purpose if the terms of a carefully orchestrated bargain can subsequently be challenged [see, People v. Prescott, 66 N.Y.2d 216, 220, 495 N.Y.S.2d 955, 486 N.E.2d 813 (1985), cert. denied 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986) ]. As a rule, a defendant who in open court admits guilt of an offense charged may not later seek review of claims relating to the deprivation of rights that allegedly took place before the plea was entered.   This is so because a defendant's conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings that might have led to his conviction after trial.  [See, People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 372, 738 N.E.2d 773 (2000).]   In most situations, the courts should honor such waivers, which foreclose post-judgment review of all claims that might be raised on appeal, except, of course, those categories of claims that survive such waivers under our case law.   Doing so gives full and fair effect to the negotiated plea and appeal waiver and gives District Attorneys the full benefit of the bargain to which they consented, consistent with the long-standing principle underlying judicial recognition of appeal waivers that bargains fairly made should signal an end to litigation, rather than a gateway to further litigation.  [See, People v. Clow, 10 A.D.3d 803, 782 N.Y.S.2d 148 (3rd Dept.2004) and People v. Gertz, 154 Misc.2d 762, 586 N.Y.S.2d 463 (Sup.Ct.1992).]

For all of these reasons, this Court holds that the defendant cannot attack his plea conviction by the vehicle of a 440 motion once he has validly waived his appeal rights, unless the argument sought to be raised in the 440 motion either is one that legally survives the waiver of appeal such that it can be lawfully raised on an appeal, advances a claim of newly-discovered evidence, advances a claim of post-judgment change in the relevant law, or advances claims that cast doubt upon the voluntariness of the plea itself.   If precluded on appeal, the issue is equally precluded on a 440 motion.

Every argument here advanced by the defendant was waived by the express terms of the pleas entered.

 This Court further rejects, as totally without merit, defendant's contention that he received ineffective assistance of counsel.   The main inquiry in determining if a defendant has received ineffective assistance of counsel is whether the defendant received meaningful representation.   Viewing the record as a whole and in light of the favorable plea bargain negotiated by the defendant, it is apparent that this defendant received effective assistance of counsel.   In light of defendant's prior history and the enormous risk that a trial would result in a substantially longer prison term, it cannot be said that defense counsel's tactical choice recommending that defendant plead guilty and accept a lesser prison sentence amounted to ineffective assistance of counsel.   Moreover, defendant explicitly stated that he was completely satisfied with the representation he received at the time the terms of the plea arrangement were stated on the record.  [See, People v. Chevalier, 226 A.D.2d 925, 928-9, 641 N.Y.S.2d 433, 437 (3rd Dept.1996) and People v. White, 300 A.D.2d 830, 752 N.Y.S.2d 166 (3rd Dept.2002).   Also cf., People v. Satterfield, 66 N.Y.2d 796, 497 N.Y.S.2d 903, 488 N.E.2d 834 (1985).]

Even when this Court considers the substance of the claims made, despite such appeal waivers, it finds that they are all meritless.   Defendant's assertions in support of the 440 motion are purely speculative in nature, and are substantiated only by his own self-serving affidavit.  [See, People v. Chevalier, 226 A.D.2d 925, 927, 641 N.Y.S.2d 433, 436 (3rd Dept.1996).]   Mere conclusory allegations are alone insufficient to require a trial court to conduct an evidentiary hearing for the purpose of resolving those accusations.  [People v. Brown, 56 N.Y.2d 242, 246-247, 451 N.Y.S.2d 693, 436 N.E.2d 1295 (1982) rearg. den.  57 N.Y.2d 673, 454 N.Y.S.2d 1032, 439 N.E.2d 1247;  People v. Session, 34 N.Y.2d 254, 357 N.Y.S.2d 409, 313 N.E.2d 728 (1974);  People v. Bacchi, 186 A.D.2d 663, 664-665, 588 N.Y.S.2d 619 (2nd Dept.1992) app. den.  81 N.Y.2d 760, 594 N.Y.S.2d 722, 610 N.E.2d 395, aff. 101 F.3d 683 and People v. Ingram, N.Y.L.J. November 16, 1999 (QDS:42701782).]   For this reason, too, they are denied.

Since he is not entitled to a hearing, the defendant is likewise not entitled to appointment of public counsel to represent him on this 440 motion.  [See, People v. Richardson, 159 Misc.2d 167, 603 N.Y.S.2d 700 (Kings Co.1993);  People v. Ramsey, 2001 WL 1875965, 2001 N.Y. Slip Op. 50142 (U) (Sup.Ct.2001) and Section 722(4) of the New York State County Law.]

PETER L. BRODERICK, J.