Defendant Kenneth Gonzales stands convicted of criminal possession of a weapon in the third degree (PL §265.02[4]) by plea of guilty before another Justice ^[FN1] of this court. The defendant now moves pro se to vacate the judgment pursuant to Criminal Procedure Law §440.10(1)(h), on the grounds that his trial counsel was ineffective and that errors by the trial court prevented the plea from being knowing, intelligent and voluntary. The People have opposed the motion.

For the reasons stated, the motion is summarily denied.

I.FACTUAL AND PROCEDURAL BACKGROUND

On March 10, 1994, defendant was arrested in front of 178 East 108th Street, New York County after a police officer recovered a nine millimeter "MAC 11" semi-automatic firearm from defendant's coat pocket. On March 22, 1994, defendant was indicted for criminal possession of a weapon in the second degree (PL §265.03) and criminal possession of a weapon in the third [*2]degree (PL §265.02[4]). Immediately following his arraignment on those charges, defendant's counsel, Andrea Leeds-Armstrong, Esquire, of the Legal Aid Society, secured an adjournment for the purpose of seeking to resolve both the instant indictment and a pending misdemeanor case against defendant in New York City Criminal Court. It is uncontroverted that defense counsel contacted the assigned assistant district attorney on at least one occasion to attempt to negotiate a more favorable disposition than the sentence of one-to-three years being recommended by the People.

On April 27, 1994, pursuant to a plea agreement, defendant entered a plea of guilty to one count of criminal possession of a weapon in the third degree (PL §265.02[4]), in exchange for a promised indeterminate sentence of one-to-three years and dismissal of his misdemeanor case. (See Transcript, April 27, 1994 ["Tr."] attached as Exh. A to Peoples' Response to Defendant's Motion Pursuant to CPL §440.10 ["People's Response"]). At counsel's request, the court agreed to entertain an application for youthful offender treatment at sentencing.

On May 16, 1994, defendant was sentenced by the same Justice to an indeterminate term of one-to-three years' imprisonment. The court denied counsel's request that defendant be granted youthful offender treatment. No appeal was ever taken from the judgment.

On September 16, 1994, defendant was transferred by the New York State Department of Correctional Services to the Lincoln Work Release Program. He absconded from that facility on January 9, 1995.

In 1998, defendant was convicted in the United States District Court for the Middle District of Pennsylvania on two counts of intentional killing during the course of a continuing criminal enterprise (21 USC §848[e][1][A]).^[FN2]

By notice of motion dated November 9, 2007, defendant now seeks vacatur of the judgment, principally on the ground that he was denied his right to effective assistance of counsel under both the federal and state constitutions.

II.PARTIES' CONTENTIONS

Specifically, defendant complains that his counsel "rushed" him into the courtroom and advised him to plead guilty; failed to advise him that his prior conviction would be used to enhance his sentence in a future conviction; subjected him to double jeopardy by such omission; and failed to advise him of his rights under [*3]Boykin v. Alabama, 395 US 238, 243 (1969). Defendant further argues that, due to his counsel's ineffectiveness, his plea of guilty was not knowing, intelligent or voluntary.

The People argue that most of defendant's claims pertain to matters appearing on the court record which could have been raised by defendant in an appeal, but were not. They further urge that allegations of fact essential to the motion are contradicted by the court records and that defendant unreasonably delayed filing the instant motion. They contend that defendant's subsequent enhanced sentence did not subject him to double jeopardy in the instant case and that such claims are more properly addressed, if at all, to the court which imposed his federal sentences.

III.LEGAL STANDARDS

A.CPL Article 440 Standards

1.CPL §440.10

Criminal Procedure Law §440.10(1) provides that at any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment, inter alia, on the ground that "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." (CPL §440.10[1][h]). A CPL §440.10 motion is not a vehicle for a second appeal, however. (People v. Cooks, 67 NY2d 100, 103 [1986]). Rather, it is designed to inform a court of facts not appearing on the record and unknown at the time of judgment that would, as a matter of law, undermine the judgment. (People v. Harris, 109 AD2d 351 [2d Dept. 1985], lv. denied, 66 NY2d 919 [1985]).

A motion to vacate judgment must be denied, inter alia, when, notwithstanding the existence of a sufficient factual record, no appellate review occurred owing to the defendant's unjustifiable failure to raise such ground on appeal. (CPL §440.10[2][c]). Criminal Procedure Law §440.10(3) establishes a court's permissive authority to deny the motion. Where the motion to vacate is not procedurally barred by the applicable provisions of CPL §440.10(2) or CPL §440.10(3), the court must consider the motion on the merits. (CPL §440.30[2][b]; People v. Harris, supra, 109 AD2d at 354).

2.CPL §440.30[4]

Upon reaching the merits, the court may deny the motion without a hearing, if the moving papers, inter alia, fail to allege a ground constituting a legal basis for the motion (CPL §440.30[4][a]) or fail to allege sufficient facts to support the legal ground asserted (CPL §440.30[4][b]; see People v. Session, 34 NY2d 254 [1974]). The motion may also be denied if such an allegation (I) is contradicted by a court record or other official document or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under [*4]these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true. (CPL §440.30[4][d]). Only in the event that the court does not determine the motion pursuant to the other provisions of CPL §440.30 must a hearing be conducted. (CPL §440.30[5]). If the court orders a hearing, the defendant bears the burden of proving, by a preponderance of the evidence, every fact essential to support the motion. (CPL §440.30[6]).

B.Constitutional Right to Counsel Standards

Both the federal and state constitutions protect a criminal defendant's right to counsel at trial with the guarantee of effective assistance of counsel to mount a defense. (U.S. Const., amend. VI; NY Const., art. I, § 6). "It is well established that these constitutional rights are violated if a defendant's counsel fails to meet a minimum standard of effectiveness, and defendant suffers prejudice from that failure." (People v. Turner, 5 NY3d 476, 479-80 [2005], citing Strickland v. Washington, 466 US 668 [1984]; People v. Baldi, 54 NY2d 137 [1981]). In order to establish a constitutional violation under the federal standard, a defendant must satisfy a two-pronged test, demonstrating first, "that counsel's representation fell below an objective standard of reasonableness" (Strickland v. Washington, supra, 466 US at 688), and second, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at 694; People v. Turner, supra, 5 NY3d at 480). The Supreme Court has counseled:

[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. . . . [T]he court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Under Article I, §6 of the New York State Constitution, to prevail on a claim of ineffective assistance of counsel, the movant must show deprivation of "meaningful representation." (See People v. Baldi, 54 NY2d 137, 147 [1981]). This standard is flexible and is satisfied so long as the evidence, the law and the circumstances of a particular case, viewed in totality at the time of the representation, reveal that counsel provided [*5]"meaningful representation." (People v. Henry, 95 NY2d 563, 565 [2000], citing People v. Benevento, 91 NY2d 708, 712 [1998]; People v. Baldi, supra, 54 NY2d at 147).

IV. DISCUSSION

A.Defendant's Ineffective Assistance of Counsel Claims

Defendant has raised several separate arguments for vacating the judgment pursuant to CPL §440.10(1)(h) based upon right to counsel violations. Each will be addressed in turn.

1.Failure to Advise Defendant that His Guilty Plea Could Enhance His Future Sentence

Defendant's principal claim is that his judgment of conviction should be vacated because neither the court nor his defense counsel advised him that his plea of guilty in this case could be used to enhance his sentence in a future conviction. Contrary to defendant's assertions, however, neither the court nor counsel failed in their respective constitutional duties to him.

At the outset, defendant's claim is factually erroneous. At defendant's plea allocution in this case, in the presence of defense counsel, the court told defendant:

THE COURT: This is a felony conviction. If you are convicted of another felony within the next ten years you would be subject to mandatory state prison; do you understand that?

THE DEFENDANT: Yes.

(Tr. at 6).^[FN3] Thus, on the record, the court advised defendant, in the presence of his counsel, of the possibility of his receiving an enhanced future state sentence as a result of his conviction in the instant case. Neither defendant nor his counsel protested that he had not been previously informed of the possibility of an enhanced sentence. Thus, defendant's claim that his counsel had not told him of the possibility of an enhanced sentence as a result of his plea is effectively belied by the silence of defendant and his counsel. Therefore, defendant's factual allegations in this regard are contradicted by the court record and, under the circumstances, there is no reasonable possibility that the allegations are true. Accordingly, defendant's motion on this ground is denied pursuant [*6]to CPL §440.30(4)(d).

Moreover, even were this court to credit defendant's factual allegations, there is no legal basis for his claim that his constitutional rights were thereby violated, either by the court or his counsel. The New York Court of Appeals has delineated the nature of the consequences of which a court must advise a defendant prior to a guilty plea as follows:

Manifestly, a criminal court is in no position toadvise on all the ramifications of a guilty plea personal to a defendant. Accordingly, the courts have drawn a distinction between consequences of which the defendant must be advised, those which are "direct", and those of which the defendant need not be advised, "collateral consequences." A direct consequence is one which has a definite, immediate and largely automatic effect on defendant's punishment.

The failure to warn of such collateral consequences will not warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the court does not control.

The possibility of receiving an enhanced sentence for a crime a defendant might commit in the future, whether in this or another jurisdiction, is a collateral consequence of his guilty plea, and neither the court nor counsel has an obligation to so advise a defendant. (People v. Rodriguez, AD3d , 2008 WL 803404 [2d Dept., March 25, 2008], citing People v. Ford, supra, 86 NY2d at 403, and People v. McGrath, 43 NY2d 803, 804 [1977]; People v. August, 33 AD3d 1046, 1050 [3rd Dept. 2006]; People v. Edwards, 96 AD2d 610, 611 [3rd Dept. 1983]). Accordingly, defendant's motion on this ground is without legal basis and is denied for that reason as well. (CPL §440.30[4][a]).2.Defense Counsel's Alleged Failure to Advise Defendant that His Guilty Plea Could Enhance His Future Sentence in Violation of [*7]His Constitutional Protection Against Double Jeopardy

Defendant avers that, due to his defense counsel's failure properly to advise him, defendant entered a plea of guilty in the instant case and, consequently, received an enhanced sentence years later in federal court. Defendant argues that because both the state sentence in this case and his subsequent enhanced federal sentence emanate from his improperly counseled guilty plea and conviction in this case, his Fifth Amendment right under the federal Constitution not to be subject to double jeopardy was violated.

Defendant's contention in this regard is entirely without merit. The sentence imposed upon defendant in 1998 was not for the charge to which defendant pled guilty in the instant case. Rather, the sentence imposed was solely for the federal crimes defendant committed subsequently to his guilty plea in this case. Both federal and New York courts have rejected the proposition that consideration of prior proceedings against a defendant in imposing sentence does not violate a defendant's right not to be subject to double jeopardy. (See Witte v. United States, 515 US 389, 400 [1995]["In repeatedly upholding such recidivism statutes, we have rejected double jeopardy challenges because the enhanced punishment imposed for the later offense is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one"][citations omitted]; People v. Glenn, 259 AD2d 375 [1st Dept. 1999], lv. denied, 94 NY2d 880 [2000][taking past crimes into account in imposing enhanced sentence for subsequent crime does not violate double jeopardy rights]). Moreover, were defendant's claim meritorious, any request for relief would properly be addressed to the court which imposed sentence in defendant's federal cases, namely, the United States District Court for the Middle District of Pennsylvania.

As there is no legal basis for defendant's claim in this regard, to the extent defendant's motion relies upon this ground, the motion is denied. (CPL §440.30[4][a]).

3.Defense Counsel's Alleged Failure to Advise Defendant of His Boykin Rights

Defendant contends that he was denied effective assistance of counsel because his defense counsel failed to advise him of his right to trial by jury as required by Boykin v. Alabama, supra. Again, the court record belies defendant's contention.[*8]During the plea allocution, the court informed defendant, in the presence of defense counsel:

THE COURT: [B]y pleading guilty at this time you give up your right to have this matter tried before a jury where you would be represented by counsel. At this trial your lawyer would have the right to cross-examine the witnesses who might testify against you. You would have the right to remain silent at this trial, since you don't have the burden of proving anything in this case. But if you wished to do so, you could testify, you could call witnesses and you could present evidence in your own behalf. You are giving up the right to force the prosecutor into a position, in order to convict you, the D.A. would have to convince the jury that you were guilty of these charges by proof that goes beyond a reasonable doubt. By pleading guilty now you give up these rights, there will be no trial, this case ends now, do you understand that?

THE DEFENDANT: Yes.

(Tr. at 4-5). Defendant affirmed that he understood and was waiving those rights.

Accordingly, defendant's factual allegations in this regard are contradicted by the court record and, under the circumstances, there is no reasonable possibility that the allegations are true. Defendant's motion on this ground is denied pursuant to CPL §440.30(4)(d).

4.Failure to Advise Defendant of Right to HaveGuilt Proven Beyond a Reasonable Doubt

Defendant further asserts that he received ineffective assistance in that his defense counsel failed to inform him that, at trial, the People would have the burden of proving him guilty beyond a reasonable doubt. Again, the court record contradicts defendant's assertion. As already noted, at the plea allocution, in the presence of defense counsel, the court stated to the defendant:

THE COURT: [I]n order to convict you, the D.A. would have to convince the jury that you were guilty of these charges by proof that goes beyond a reasonable doubt.

5.Defendant's Guilty Plea Was Not Knowing,Intelligent or Voluntary

Defendant further asserts that, as a result of the ineffective assistance he received from his defense counsel, his guilty plea was not knowing, intelligent or voluntary and should be vacated. Defendant's assertion in this regard is entirely without factual basis. Moreover, at no time subsequent to his plea of guilty on April 27, 1994 has defendant claimed that he was innocent of the charges. Accordingly, defendant's motion on this ground is denied. (CPL §440.30[4][b]).

6.Defense Counsel Failed to Conduct Any Pre-trialInvestigation or File Pre-trial Motions

Defendant avers that his defense counsel rendered ineffective assistance to him because she failed to conduct any pre-trial investigation and failed to file pre-trial motions. In order to establish ineffective assistance, a defendant must "demonstrate the absence of strategic or other legitimate explanations" for defense counsel's conduct. (People v. Caban, 5 NY3d 143, 152 [2005]; People v. Rivera, 71 NY2d 705, 709 [1988]). Here, defendant does not make any such showing.Moreover, the reason counsel undertook no pre-trial investigation or motion practice is self-evident. When defendant entered a negotiated plea of guilty, he waived his right to a trial. As no trial was held, there was neither any opportunity, nor was there any need, for defense counsel to conduct pre-trial discovery, launch any investigation or file any pre-trial motions. Therefore, defendant's claim in this regard is without legal basis. Accordingly, his motion on this ground is denied pursuant to CPL §440.30(4)(a).

In sum, in his ineffective assistance claims defendant has failed to demonstrate either "that counsel's representation fell below an objective standard of reasonableness" (Strickland v. Washington, supra, 466 US at 688), or that there is a reasonable probability that a more favorable result would have obtained, but for counsel's conduct. (Id. at 694). Moreover, the evidence, the law and the circumstances of this case, when viewed in their totality at the time of the representation, reveal that defense counsel afforded meaningful representation to defendant. (See People v. Henry, supra, 95 NY2d at 565; People v. Benevento, supra, 91 NY2d at 712; People v. Baldi, supra, 54 NY2d at 147). Accordingly, the court finds that there is no merit to any aspect of defendant's claim pursuant to CPL §440.10(h) that he was deprived of effective assistance of counsel, and his motion on this ground is denied. (CPL §440.30[4][a], [b] and [d]). [*10]

B.Defendant's Remaining Claims

Defendant further contends that the judgment of conviction should be vacated pursuant to CPL §440.10[1][h] because the court failed to advise him of his right to a jury trial and his right to confrontation and cross-examination of witnesses. As discussed above (see section IV. A. 3, supra), the record of defendant's plea proceedings demonstrates that the court specifically advised defendant of these rights on the record and in the presence of his counsel. Therefore, defendant's allegations in this regard are contradicted by the court record and, under the circumstances, there is no possibility that these allegations are true. Accordingly, defendant's motion on this ground is denied. (CPL §440.30[4][d]).

Defendant also argues that the judgment should be vacated because the court did not ensure that there was a factual basis for defendant's guilty plea before accepting it. In fact, although there is a sufficient factual record of defendant's plea allocution to have permitted defendant to have taken a direct appeal from the judgment on this ground, defendant chose not to do so.

Furthermore, defendant has offered no justification for his failure to have pursued an appeal during the past fourteen years. Rather, he claims to have found fault with his state court conviction solely because it has apparently become the basis for imposition of enhanced life-term sentences in his subsequent federal cases. Pursuant to CPL §440.10(2)(c), therefore defendant's motion on this ground is mandatorily barred and is denied.

In any case, the record again demonstrates the falsity of defendant's claim:

THE COURT: Now, it's charged in the indictment that on March 10, 1994 about 10:20 in the evening, in front of 178 East 108th Street in New York County, at that time and location you possessed a loaded firearm and that location was not your home or place of business; is that true?

THE DEFENDANT: Yes.

THE COURT: What type of firearm are we talking about?

What type of firearm did you possess?

THE DEFENDANT: Mach 11.

(Tr. at 5-6).

Defendant's remaining claims have been considered and determined to be without merit. Accordingly, defendant's motion on those grounds is denied without a hearing. (CPL §440.30[5]).

V.CONCLUSION

[*11]For all the foregoing reasons, defendant's motion pursuant to CPL §440.10(1)(h) to vacate the judgment is denied in its entirety, without a hearing.

The foregoing constitutes the decision and order of this court.

E N T E R:

_______________________

Marcy L. Kahn, J.S.C.

Dated: New York, New York

April 25, 2008