PEOPLE v. FLORES (2019)

DECISION & ORDER

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Carolyn E. Demarest, J.), dated July 28, 2016.  The order denied, after a hearing, the defendant's motion pursuant to CPL 440.10 to vacate a judgment of conviction of the same court rendered November 22, 2004, convicting him of murder in the second degree, attempted murder in the second degree, assault in the second degree, reckless endangerment in the first degree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the order is affirmed.

The defendant was charged with, inter alia, murder in the second degree, attempted murder in the second degree, assault in the second degree, reckless endangerment in the first degree, and criminal mischief in the fourth degree, for his acts in firing multiple gunshots at a group of people leaving a party in Brooklyn, killing one person and injuring two others.  Prior to trial, the Supreme Court repeatedly offered a sentencing deal to the defendant in which he would be sentenced to a term of imprisonment of 15 years to life on the murder count if he were to forego trial and plead guilty to the indictment.  The People did not join in the court's offer.  The defendant rejected the court's offer, proceeded to trial by jury, and was found guilty on all counts.  The defendant was sentenced, as a predicate violent felon, to consecutive terms of imprisonment of 24 years to life for the murder conviction, 20 years for the attempted murder conviction, and 7 years for the assault conviction, and concurrent terms of imprisonment of 31/212 to 7 years for reckless endangerment and 1 year for criminal mischief, for an aggregate term of imprisonment of 51 years to life.  The defendant's judgment of conviction, including the court's imposition of consecutive sentences, was affirmed by this Court on direct appeal from the judgment (see People v. Flores, 46 A.D.3d 570, 846 N.Y.S.2d 626).

By motion filed March 5, 2013, the defendant moved pursuant to CPL 440.10(1)(h) to vacate the judgment of conviction on the ground that he had received ineffective assistance of trial counsel.  The defendant alleged that trial counsel had failed to adequately advise him regarding the Supreme Court's pretrial sentencing offer by misadvising the defendant that he faced a maximum sentence of 25 years to life if convicted after trial, instead of advising him that he faced imposition of consecutive sentences if convicted after trial, and by misadvising the defendant of the likelihood of success at trial.  In an order dated July 28, 2016, made after a hearing, the court denied the defendant's motion.

The defendant failed to demonstrate that he was deprived of the effective assistance of counsel under either the federal or state constitution (see U.S. Const Amend VI; NY Const, art I, § 6; Lafler v. Cooper, 566 U.S. 156, 162, 132 S.Ct. 1376, 182 L.Ed.2d 398; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).  According deference to the Supreme Court's credibility determinations (see People v. Davidson, 150 A.D.3d 1142, 55 N.Y.S.3d 357), we agree with the court's determination that the defendant failed to carry his burden of establishing that his trial counsel misadvised him of the sentencing exposure that he faced if convicted after trial, including the imposition of consecutive sentences.  Moreover, the defendant's testimony was contradicted by the court's independent recollection of the proceedings.  Under these circumstances, the defendant failed to establish that he was misadvised during plea discussions with the court (see Lafler v. Cooper, 566 U.S. at 163, 132 S.Ct. 1376).  The defendant further failed to establish that he would have pleaded guilty to the indictment prior to trial had he been differently advised (see id.).  Although the defendant testified that he would have pleaded guilty, the defendant acknowledged, during the hearing, that his trial counsel advised him that certain evidence “looked bad” for him, and the record of pretrial proceedings demonstrates that the defendant maintained his innocence prior to trial.  Thus, regardless of whether his trial counsel misadvised the defendant, the defendant has failed to show that there was a reasonable probability that he would have accepted the court's sentencing offer (see People v. Quinones, 139 A.D.3d 408, 30 N.Y.S.3d 101; People v. Ross, 123 A.D.3d 454, 998 N.Y.S.2d 177).  Accordingly, we agree with the court's determination denying the defendant's motion.

The defendant's remaining contentions are without merit.

RIVERA, J.P., DILLON, AUSTIN and HINDS–RADIX, JJ., concur.