PEOPLE v. SWINTON (2008)

Defendant Reginald Swinton (“Swinton”) moves pro se pursuant to CPL Section 440.10(h) to vacate a judgment dated September 5, 1975, convicting him, after a plea of guilty on May 13, 1975, of Rape in the First Degree, and sentencing him to a prison term of from five to fifteen years.  In addition, Swinton seeks forensic testing of any rape kits or clothing related to his case that may contain deoxyribonucleic acid (“DNA”) pursuant to CPL Section 440.30(1–a).  Finally, Swinton seeks a temporary injunction directed at unnamed persons to prevent any “outside questioning” of him concerning this matter pending resolution of the motion.  For the reasons set forth below, the motion is denied in its entirety.

The gravamen of Swinton's motion is that his plea was involuntary on the theory that the trial court denied Swinton his Sixth Amendment right to counsel, that the plea was the result of ineffective assistance of counsel who failed to have defendant's mental competency evaluated or advise him on the use of a possible affirmative defense, and that the terms of the plea were not clearly placed on the record and were not subsequently kept.  See Affidavit of Reginald Swinton sworn to April 28, 2007 (“Swinton Aff.”) at ¶¶ 5–7.

Statement of Facts

In December 1974, Swinton was charged by Indictment 3109/1974 and by Indictment 3201/1974 with three counts of Rape in the First Degree, two counts of Attempted Rape in the First Degree, three counts of Sodomy in the First Degree, two counts of Robbery in the First Degree, two counts of Burglary in the First Degree, and seventeen lesser charges arising out of incidents involving five different women on five different occasions.  See Affirmation of ADA Bryan C. Hughes dated August 7, 2007 (“Hughes Aff.”) at ¶¶ 4–5.  In connection therewith, Swinton was represented by retained counsel, the firm of Rothblatt, Seijas and Peskin, by Robert A. Sackett, Esq. (now Justice Sackett, Supreme Court, Sullivan County).  See Defendant's Appendix (“Def. App.”) Exhibit 1 at 2.

The two indictments were consolidated for trial and Wade hearings commenced on May 7, 1975 before Justice Quinn.  Id. On May 12, the day the trial was to commence, defense counsel advised the court that Swinton had agreed to plead guilty to one count of Rape in the First Degree in exchange for a sentence of from five to fifteen years imprisonment to cover both indictments, a pending matter in Bronx Criminal Court (Docket No. X5114851), and any other pending criminal cases or investigations in Bronx County, other than Class “A” felonies.  See Def. App. Exhibit 4 at pp. 1–6.  During the plea allocution, Swinton admitted to the rape and acknowledged the consequences of the change of plea, but claimed at the end of the allocution that he was innocent.  Id. at 7–13.  The court refused to accept the plea.  Id. at pp. 13–14.  Swinton then asked for a change of counsel, which was denied.  Id. at pp. 14–15.

Following the luncheon recess, defense counsel asked to be relieved because Swinton no longer trusted him and because counsel felt that he could no longer trust himself due to his efforts to get Swinton to plea guilty and his lack of preparation for trial.  Id. at 17–21.  The trial court denied the application on the grounds that it was merely a ploy to delay the trial and because Swinton's attorney had demonstrated exceptional ability.  Id. at 22–24.  The trial court then denied the Wade motion, sent for a jury, and seated one juror.  See Def. App. Exhibit 1 at 6.

The next day, after conferring with Swinton for almost two hours, defense counsel advised the court that Swinton wished to avail himself of the plea bargain discussed earlier.  See Def. App. Exhibit 4 at pp. 26–27.  Swinton was sworn in and during the plea allocution acknowledged discussing the case with his counsel, his mother and fiancé;  that he understood the consequences of his guilty plea;  that he committed Rape in the First Degree;  that he waived certain constitutional rights;  and that he was not coerced into pleading guilty.  Id. at pp. 28–34.  The trial court further stated that it would not accept a guilty plea from an innocent man, and that it would only accept the guilty plea if Swinton would again admit to committing the crime of Rape in the First Degree.  Swinton admitted that he did so.  Id. at p. 34.  The matter was adjourned for sentencing.

On the date of sentence, August 6, 1975, new retained counsel, Stephen Hyman of the firm of Kunstler, Kunstler, Hyman and Goldberg, appeared on behalf of Swinton.  Id. at p. 40.  Swinton had obtained new counsel to apply to the court to withdraw his previously entered plea of guilty.  Id. at pp. 40–41.  The court indicated that it would consider affording a hearing to Swinton on the question of the voluntariness of his plea without formal motion papers.  Said hearing occurred later that same day with Swinton's new attorneys after speaking with a representative of Swinton's prior attorneys.  Id. at pp. 42–57.

Following oral argument on the application, Swinton testified on his own behalf at the hearing.  Id. at pp. 58–78.  In response to the question of whether his plea voluntarily made, Swinton replied, “[n]ot really” (id. at p. 79), and testified that he did not want to go trial with his prior attorney, who repeatedly counseled him to accept the plea.  Id. at pp. 78–89.  On cross-examination, Swinton acknowledged that he had been sworn under oath on May 13, that he had not been truthful during the plea allocution, but that he was just repeating yes or no answers given to him by counsel.  Id. at pp. 89–91.  Swinton then stated that he knew what questions he was answering, but later claimed he was not even listening to the judge's questions.  Id. at pp. 91–92.  Swinton testified that all he did was say “ yes, yes, yes, yes,” but then acknowledged answering some questions in the negative, including whether he was coerced into pleading guilty.  Id. at pp. 92–98.  Ultimately, the court denied his application to vacate the plea on the grounds that Swinton was not credible, and sentenced him to from five to fifteen years imprisonment in accordance with the plea agreement.  Id. at p. 108.  Swinton was re-sentenced to serve the same term of imprisonment in a different correctional facility on September 5, 1975.  See Def. App. Exhibit 4 at pp. 117–134.

Swinton appealed the conviction through his new counsel.  Swinton's appellate brief asserted that his plea of guilty should have been vacated because his plea was coerced due to the alleged violation of his Sixth Amendment right to counsel.  See Def. App. Exhibit 1 at pp. 9–10.  Specifically, Swinton claimed on appeal that his Sixth Amendment right to counsel was violated because of the trial court's refusal to permit Swinton to substitute counsel on the eve of trial, resulting in a coerced plea.  Id. at pp. 11–20.  The Appellate Division, First Department, affirmed the judgment of conviction without opinion.  See People v. Swinton, 52 A.D.2d 1098, 384 N.Y.S.2d 713 (1st Dept.1976).  Leave to appeal to the Court of Appeals was denied. See Defendant's Memorandum of Law (“Def. Mem.”) at p. 10.

In the intervening years, Swinton did not seek any other relief with respect to this conviction.  See Swinton Aff. ¶ 10.  Swinton has, however, had numerous contacts with the criminal justice system.  In 1980, Swinton was convicted after a jury trial of Burglary in the Second Degree and sentenced to one year in prison. In 1986, Swinton was convicted after a jury trial of Robbery in the First Degree and Burglary in the First Degree and sentenced to from twelve and one-half to twenty-five years imprisonment.  In 2007, Swinton was convicted after a jury trial of two counts of Rape in the First Degree, three counts of Criminal Sexual Act in the First Degree, two counts of Robbery in the Third Degree, one count of Attempted Robbery in the Third Degree, and three counts of Burglary in the Second Degree.  In that case, Swinton was sentenced to a term of imprisonment from one hundred and twenty-five years to life.  See Hughes Aff. at ¶¶ 10, 12–13, 25–27.

On the instant application, Swinton asserts his innocence, but, in the past, has acknowledged committing the rape in other legal proceedings.  For example, in a 2003 appearance before the Board of Parole, Swinton explained the rape by stating that a girlfriend had humiliated him, and that “I got really tired of being hurt and I just lashed out ․ and that's the consequence of that ․ that was an isolated incident in time.”  See Hughes Aff. Exhibit 8 at pp. 7–8.  In addition, on an appeal to the Appellate Division, First Department from an adverse determination of Swinton's risk level assessment pursuant to the Sexual Offender Registration Act, Swinton's appellate brief argued that Swinton “did accept responsibility for his crime”—namely, the rape.  See Hughes Aff. Exhibit 11 at pp. 14–15.

Legal Analysis

 The Court “must deny” a motion to vacate a judgment where the “ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment ․” CPL § 440.10(2)(a).  That is the case here.  Swinton appealed the conviction, claiming that the trial court erred when it denied the motion to withdraw his plea, and that his plea was coerced due to the purported denial of his Sixth Amendment right to counsel.  See Def. App. Exhibit 1. The First Department rejected this argument without opinion, 52 A.D.2d 1098, 384 N.Y.S.2d 713 (1st Dept.1976), and leave to appeal to the Court of Appeals was denied.  See Def. Mem. at p. 10.  Since Swinton has previously appealed the judgment of conviction on the same grounds and issues as are raised in the current motion, the motion “must be” denied pursuant to CPL Section 440.10(2)(a).  See People v. Skinner, 154 A.D.2d 216, 221, 552 N.Y.S.2d 932 (1st Dept.), appeal denied, 76 N.Y.2d 796, 559 N.Y.S.2d 1001, 559 N.E.2d 695 (1990).  Further, review of plea bargains is typically barred by CPL Section 440.10(2)(c), as they are record-based.  See People v. Cooks, 67 N.Y.2d 100, 104, 500 N.Y.S.2d 503, 491 N.E.2d 676 (1986);  People v. Jackson, 266 A.D.2d 163, 699 N.Y.S.2d 40 (1st Dept.1999), appeal denied, 94 N.Y.2d 921, 708 N.Y.S.2d 360, 729 N.E.2d 1159 (2000).

 Swinton attempts to circumvent this bar by claiming that there has been a retroactive change in the law controlling the issue since the appellate determination.  CPL § 440.10(2)(a).  Specifically, Swinton asserts that the case of United States v. Gonzalez–Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) created a retroactive change in the right to counsel guaranteed by the Sixth Amendment.  The scope of the right to counsel has long been defined by both the state and federal courts.  Under the Sixth Amendment to the United States Constitution and under Article 1, Section 6 of the New York State Constitution, “a defendant has the right to defend in person or by counsel of his own choosing.”  People v. McLaughlin, 291 N.Y. 480, 482–83, 53 N.E.2d 356 (1944) (emphasis added).  A “defendant's right to counsel of his own choosing includes the right to change counsel at any time, without good cause, for any reason, or for no reason, if such change of counsel does not unreasonably interfere with the orderly course of the trial.”  People v. DeChiaro, 48 A.D.2d 54, 56, 367 N.Y.S.2d 353 (3rd Dept.1975) (emphasis added).  Thus it has long been established that the right to substitute counsel “cannot be invoked to delay the course of justice.”  Id. at 57, 367 N.Y.S.2d 353.  Indeed, the Supreme Court in Gonzalez–Lopez “recognized a trial court's wide latitude in balancing the right to counsel of choice against ․ the demands of its calendar.”  Gonzalez–Lopez, 126 S.Ct. at 2565–66.  Thus, on the eve of trial, “absent exigent or compelling circumstances, a court may, in the exercise of its discretion, deny a defendant's request to substitute counsel ․ if the defendant has been accorded a reasonable opportunity to retain counsel of his own choosing before that time.”  People v. Arroyave, 49 N.Y.2d 264, 271–72, 425 N.Y.S.2d 282, 401 N.E.2d 393 (1980).  At that point, the “it is incumbent upon the defendant to demonstrate that the requested adjournment has been necessitated by forces beyond his control and is not simply a dilatory tactic.”  Id. Against this background, Swinton asserts that Gonzalez–Lopez constitutes a controlling change of law that requires vacatur of the plea.  The Court disagrees.

In Gonzalez–Lopez, the district court denied the defendant his right to choice of counsel by erroneously refusing to admit the defendant's first choice of attorney pro hac vice.  Gonzalez–Lopez, 126 S.Ct. at 2560–61.  The government conceded the error before the United States Supreme Court, but claimed that the error must also have prejudiced the defendant.  Id. at 2561–62.  The Supreme Court, however, found the error to be a structural one that was not subject to a harmless error analysis and required automatic reversal of the conviction.  Id. at 2562–65.  In so holding, the Supreme Court was careful to point out that its ruling was predicated on the government's concession and was limited to whether the error should be reviewed under a harmless error analysis or whether it was a structural error requiring per se reversal.  Id. at 2565–66.  Indeed, the Supreme Court stated that “[n]othing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice ․” Id. at 2565.

Thus, Gonzalez–Lopez did not affect the scope of the Sixth Amendment right to counsel;  rather, it merely clarified whether such error was subject to harmless error analysis.  See United States v. Hashmi, 2008 WL 216936 at *5, No. 06 Cr.442 (LAP) (S.D.N.Y. Jan. 15, 2008) (stating that a “careful reading of Gonzalez–Lopez demonstrates that it is a case more about harmless error review than about defining the content to the right to choice of counsel”) (italics in original);  Persad v. Conway, 2008 WL 268812 at *8, No. 05–CV–4199 (CBA)(SMG) (E.D.N.Y. Jan. 30, 2008) (stating that Gonzalez–Lopez merely “reiterated that the right to choose particular counsel is not absolute”) (emphasis added).  Accordingly, it cannot be said that the scope of a defendant's right to counsel under the Sixth Amendment has changed since Swinton originally pled guilty and appealed his conviction.  Indeed, Swinton's brief on direct appeal and his brief on the instant application cite to some of the same legal authorities to support the claim that Swinton's right to counsel was violated, e.g., People v. DeChiaro, 48 A.D.2d 54, 367 N.Y.S.2d 353 (3rd Dept.1975).  Compare Def. App. Exhibit 1 at pp. 11–14 with Def. Mem. at p. 16.  Accordingly, this argument by Swinton is barred by CPL Section 440.10(2)(a) and must be denied.

 Swinton's other claims are denied as well.  To the extent Swinton claims that his counsel was ineffective for failing to advise him regarding a potential affirmative defense or to request a competency hearing, no facts of an evidentiary nature are set forth to establish what defense was purportedly available to Swinton or that Swinton was not legally competent (indeed, Swinton's last three trials resulted in convictions, not findings that he was incompetent).  Thus, this branch of the motion is denied pursuant to CPL Section 440.30(4)(b), as is Swinton's claim that the terms of his plea bargain were not kept.  Next, Swinton's request to have DNA testing performed is denied pursuant to CPL Section 440.30(1–a).  Under that section, relief is available to defendants who have been convicted at trial, but not to defendants who have pled guilty.  See People v. Allen, 47 A.D.3d 543, 850 N.Y.S.2d 400, 2008 WL 222351 (1st Dept. Jan. 29, 2008).  Finally, Swinton's application for injunctive relief is denied as he has not demonstrated any entitlement to such an extraordinary remedy.  See Cox v. J.D. Realty Assocs., 217 A.D.2d 179, 181, 637 N.Y.S.2d 27 (1st Dept.1995).

The foregoing constitutes the Decision and Order of the Court.

JOSEPH J. DAWSON, J.