PEOPLE v. ALEXIS (2023)

The following constitutes the opinion, decision, and order of the Court:

By his pro se motion dated November 16, 2022, defendant seeks an order of the Court to vacate his judgment of conviction on two grounds: (1) that his plea of guilty was not entered into knowingly, voluntarily, and intelligently, and (2) that the defendant was denied his right to effective assistance of counsel, rendering his plea of guilty violative of his due process rights. The defendant, in the alternative, moves for a hearing pursuant to C.P.L. § 440, for a factual determination as to whether his conviction should be vacated.

In response, the People have filed an affirmation in opposition and memorandum of law dated January 4, 2023, whereby they assert that defendant's motion must be denied in its entirety because: (1) the defendant's claim that his plea was not made knowingly, voluntarily, or intelligently is procedurally barred; (2) a finding of ineffective assistance of counsel is unsupported by the record; and (3) the defendant is not entitled to a hearing, pursuant to C.P.L. § 440.30(4)(a) and (d).

Upon the foregoing papers, and due deliberation had, defendant's pro se motion to vacate his judgment of conviction and alternatively for a C.P.L. § 440 hearing is denied for the reasons set forth below.

RELEVANT PROCEDURAL HISTORY

Defendant was charged under Queens County Indictment Number 2420/2014 with two counts of Robbery in the First Degree [P.L. § 160.15(2), (4)], two counts of Criminal Possession of a Weapon in the Second Degree [P.L. § 265.03(1)(B) and 265.03(3)], Menacing of a Police Officer or Peace Officer [P.L. § 120.18], Criminal Possession of a Weapon in the Third Degree [P.L. § 265.02(3)], and Criminal Possession of a Firearm [P.L. § 265.01(B)(1)].

On January 26, 2016, the defendant appeared for trial, with defense counsel, Daniel Guttman, Esq., before the Honorable Robert A. Schwartz of the Supreme Court of Queens County. Also present was Assistant District Attorney Barry Frankenstein on behalf of the People. At that time, an inquiry occurred on the record between the judge and the defendant, with the assistance of Mr. Guttman, as to whether the defendant was interested in a plea of guilty or instead whether he wished to proceed to trial with jury selection to begin on that date. The People placed on the record that their sentence recommendation was in the “high double digits,” should the defendant plead guilty to the indictment, and the Honorable Robert Schwartz committed to a maximum sentence on the top count of twelve years of incarceration followed by a period of five years post-release supervision, and additional time on the remaining counts to run concurrently to the twelve. (People's Affirmation, at 3).

Ultimately, after an extended colloquy on the record about both the weaknesses and merits of the case, the defendant's possible exposure on all the charges after trial, opportunities to speak to his attorney, and a break in the proceedings, the defendant pled guilty to one count of Robbery in the First Degree [P.L. § 160.15(4)], and two counts of Criminal Possession of a Weapon in the Second Degree [P.L. § 265.03(1)(B) and 265.03(3)], with the Court's promise of a sentence of a maximum of twelve years’ incarceration and five years post-release supervision, with the waiver of the right to appeal. The matter was then adjourned to February 9, 2016, for sentencing.

On February 17, 2016, after two adjournments by request of the defendant because he wished to retain new counsel, the defendant appeared for sentencing with Mr. Guttman as counsel. Judge Schwartz placed on the record that an attorney appeared the day prior, on February 16, 2016, and stated that while he was in communication with the defendant's family, he would give his opinion to them but was not retained. On that basis, the Court inquired of Mr. Guttman if the defendant was ready to proceed to sentencing, at which point, Mr. Guttman informed the Court that the defendant wished to withdraw his plea because he felt “pressured” (People's Affirmation, Exhibit 2, at 3).

After hearing from the defendant, the Court denied the defendant's request to withdraw his plea and went forward with the sentence. The Court stated that after reviewing the transcript, the Court believed that the defendant knowingly, voluntarily, and intelligently entered into the plea, that the defendant properly allocuted to the crimes, and that he accordingly admitted to the probation officer in the pre-sentence report that he committed the crimes. The Judge heard from both the People and the defendant, at which time the People requested twelve years of incarceration and Mr. Guttman asked the Court to consider less than twelve years based on the defendant's minimal criminal history. The Court then sentenced the defendant to a maximum of twelve years of incarceration and five years post-release supervision on the top count, with additional time on the remaining counts to run concurrently.

On February 17, 2016, Mr. Guttman filed a notice of appeal on behalf of the defendant. On August 1, 2018, the defendant, through counsel A. Alexander Donn, filed a motion arguing that his sentence was excessive given the defendant's lack of criminal history, that he had attended college, and that he had the potential to live a productive life. On August 14, 2018, the People filed a response arguing that the defendant had waived his right to appeal upon plea of guilty, and that his sentence was not excessive. (People's Affirmation, at 9-10). On May 22, 2019, the Appellate Division, Second Department, denied the defendant's motion, finding that the defendant had knowingly, voluntarily, and intelligently waived his right to appeal, precluding appellate review of his contention that the sentence imposed was excessive. The defendant is currently incarcerated pursuant to this judgment of conviction.

DECISION

Pursuant to section 440.10(2)(b) of the Criminal Procedure Law, a court must deny a motion to vacate judgment when 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. Further, pursuant to section 440.10(2)(c) of the Criminal Procedure law, a court must deny a motion to vacate a judgment when although sufficient facts appear on the record on 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. As clarified by the Court of Appeals, “when sufficient facts appear on the record to permit the question to be reviewed, sufficiency of the plea allocution can be reviewed only by direct appeal.” People v. Cooks, 67 NY2d 100 (1986).

Here, defendant's claims regarding the voluntariness of the plea and the effectiveness of his counsel at plea and sentence, both involve solely on-the-record matters and thus, are procedurally barred from this Court's review, as sufficient facts appear on the record to permit adequate review of these issues on direct appeal.

Even assuming, arguendo, that the defendant's claim of ineffective assistance of counsel is not procedurally barred, the Court agrees with the People that the defendant was not deprived of his right to effective assistance of counsel. The United States Supreme Court has codified that that for a finding of ineffective assistance of counsel under the Sixth Amendment, the defendant must establish: (1) that his attorney committed errors so egregious that he did not function as counsel within the meaning of the Sixth Amendment, and (2) that counsel's deficient performance actually prejudiced the defendant. Strickland v. Washington, 466 U.S. 668 (1984).

As articulated by the New York Court of Appeals, the constitutional requirement of effective assistance of counsel is met under New York law when “the evidence, the law and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation.” People v. Benevento, 91 NY2d 708, 712 (1998). The Court continues, “[w]e have similarly noted that a claim of ineffective assistance of counsel will be sustained only when it is shown that counsel partook “an inexplicably prejudicial course.” Id., at 713 (citing People v. Zaborski, 59 NY2d 863 (1983)). There is a strong presumption in favor of effective assistance. See People v. Myers, 220 AD2d 461 (2d Dept. 1995); see also People v. Baldi, 54 NY2d 137 (1981).

Courts have consistently found that “obtaining a favorable plea which limit[s] the defendant's term of imprisonment” is strong evidence of effective assistance of counsel. People v. Jackson, 56 AD3d 492, 493 (2008). In Jackson, the Court found that the “defendant failed to establish that he was denied the effective assistance of counsel in the plea negotiating process and at his plea allocution. The defendant's attorney assisted him in obtaining a favorable plea which limited the defendant's term of imprisonment to concurrent terms and satisfied several other charges.” Id., at 93. Similarly, in People v. Brooks, the Court found that “the defendant's claim that he was denied the effective assistance of counsel is similarly belied by the fact that defense counsel obtained a favorable plea which limited the defendant's term of imprisonment and which satisfied an outstanding, unrelated felony charge, and there is nothing in the record which casts doubt upon counsel's effectiveness.” Brooks, 36 AD3d 929, 930, (2007); see also People v. Mack, 31 AD3d 1197, 1198 (4th Dept. 2006); see also People v. Miller, 17 AD3d 931, 932 (3d Dept. 2005).

Here, defense counsel secured a highly favorable plea deal for the defendant. The defendant faced a maximum of twenty-five years in prison on the top count, that being Robbery in the First Degree, a class B violent felony. Furthermore, the defendant faced additional charges on the indictment, specifically two counts of Criminal Possession of a Weapon in the Second Degree, a C violent felony, on which the defendant faced a maximum prison sentence of fifteen years incarceration if convicted after trial, as well as one count of Menacing a Police Officer, which carries a maximum sentence of eight years of incarceration if convicted after trial. The defendant faced consecutive time on the Robbery and the Menacing charges, resulting in potentially an even higher sentence after trial. Nonetheless, despite all these factors, and despite the People's recommendation of “high double digits,” Mr. Guttman secured a sentencing commitment of a cap of twelve years incarceration with the mandatory post-release supervision. (People's Affirmation, at 3).

The Court further agrees with the People that the record shows that defense counsel, on the date of the plea, discussed the co-defendant's disavowal of his statements about the defendant and discussed the remainder of the evidence against him. At that point, defense counsel indicated that the defendant wanted to proceed to trial. Defense counsel was prepared and willing to begin the trial later that same day. However, after a break in the proceedings, the defendant changed his mind and decided to plead guilty. Therefore, the defendant had time to consider the strengths and weaknesses of the case, including the information regarding Mr. Howell, before pleading guilty.

Thus, the defendant's motion under a claim of ineffective assistance of counsel is denied pursuant to section 440.30(4)(d) of the Criminal Procedure Law, as it is made solely by defendant and is unsupported by any other affidavit or evidence, and under the circumstances of this case, there is no reasonable possibility that such allegations are true.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

Cassandra M. Mullen, J.