Defendant moves to vacate her April 20, 2010 plea of guilty to criminal sale of a controlled substance in the third degree (PL § 220.39). Defendant was represented by The Legal Aid Society at the time of the plea, and they were relieved of their representation when, at the time of sentence, defendant repudiated her plea. New counsel was assigned and filed the current motion.

The attorney's affirmation in support of the motion alleged that defendant was not provided with effective legal representation. The attorney claimed that defendant pled guilty as a result of "duress and undue influence placed upon her by her attorney at the time of the plea and other attorneys from the same office in . . . Court appearances leading up to the plea." It was further alleged by counsel that the attorneys never discussed "any options other than taking a plea to receive youthful offender status and five years of probation." Counsel further stated that defendant now maintained that she was "not guilty of any crime." According to counsel, defendant's mother alleged that she "asked defendant's attorneys numerous times for specifics about the evidence, and she never received any answers." There were no affidavits from defendant, her mother, or any of the attorneys from The Legal Aid Society who represented defendant prior to her plea annexed to the moving papers, nor any explanation as to why those attorneys' affidavits were unobtainable. The People responded that "defendant met with counsel approximately (15) five (sic) times prior to the April 20, 2010 court appearance. The People did not indicate the source of such information.

On January 28, 2011, the Court ordered an evidentiary hearing. Testimony was taken on March 4, 2011. None of the attorneys from The Legal Aid Society appeared to testify, and the Court never received affidavits from those attorneys to substantiate the defendant's claims. Defendant testified that she had lied in regards to virtually every answer she gave to the Court during her plea allocution, which was done under oath. Defendant's mother also testified. The Court does not credit all of testimony at the

hearing, and makes findings of fact only about the testimony found to be credible, [*2]

as well as information from court records. The Court denies the motion.

FINDINGS OF FACT

On June 2, 2009, defendant, who was seventeen years old at the time, was arrested and subsequently accused of felony charges in two separately docketed felony complaints. Under docket number 2009BX035143, she was charged with criminal sale of a controlled substance in the third degree. An undercover police officer alleged in the complaint that defendant, along with Richard Martinez, Mark Boyd, and several others, were selling narcotics from a first-floor apartment window of a building located at 325 East 194th Street, Bronx County, on June 2, 2009, at about 5:25 P.M. The officer specifically alleged that defendant, who he saw at the window inside the apartment, handed three bags of crack cocaine to co-defendant Boyd, who was standing on the sidewalk outside the window. Boyd then immediately delivered the crack cocaine to the officer.

In a separate complaint, docket number 2009BX036141, defendant was also charged with criminal possession of a controlled substance. Another police officer alleged that, at about the same time the sale occurred, he entered the aforementioned apartment and found defendant and Jamel Hawkins, a twenty-three-year-old man, inside. The officer further stated that he recovered fifteen clear bags containing crack cocaine sitting in plain view on the dining room table. While the police officers were in the apartment, defendant's brother, Alan Knight, entered and said, "What's going on. This is my apartment." He was arrested, along with defendant and Mr. Hawkins. Defendant also lives in that apartment, along with her mother, who was at work at the time of the arrest.

On June 4, 2009, defendant appeared for her arraignment. The Court assigned The Legal Aid Society to represent defendant. Vincent Graci, a very experienced staff attorney from The Legal Aid Society, was designated to be defendant's attorney. Mr. Graci met with defendant to discuss the case prior to her court appearance. He went over the factual allegations in the accusatory instruments with her, and defendant then told her Mr. Graci her version of the events. When defendant appeared before the judge, she entered pleas of not guilty to all charges. Following a bail hearing, the arraignment judge released defendant on what she testified was "ROR status" on each case. The People served notice that they intended to present all charges to the grand jury; Mr. Graci served written notice that defendant wished to appear and testify before the grand jury. The cases were adjourned to June 8, 2009 for grand jury action.

According to court records, the People did not present any evidence to the grand jury prior to the adjourned date. On that date, defense counsel once again indicated that defendant wished to testify before the grand jury. The case was subsequently presented to the grand jury, and defendant, along with Mark Boyd, were indicted as accomplices to the narcotics sale. Mr. Boyd, who was held in custody, was arraigned on the indictment on June 30, 2009; defendant was not arraigned on the indictment until [*3]July 20, 2009.^[FN1] The sole charge contained in the indictment was criminal sale of a controlled substance in the third degree. It is unknown whether the People sought a separate charge based on the evidence recovered inside defendant's apartment; it is also unknown what happened to the charges involving Mr. Hawkins. On July 31, 2009, Mr. Boyd pled guilty to criminal sale of a controlled substance in the third degree and he was sentenced to one and one-half years in state prison.

At some point, Mr. Graci met with both defendant and her mother in his office. He explained the charges and read the facts in the accusatory instrument to each of them once again, and discussed other issues in the case. Defendant's mother testified that Mr. Graci explained that defendant "was making a sale through the window through a young man that we knew in the neighborhood." At some point, Mr. Graci excused defendant's mother, and met with defendant alone. Defendant presented her version of what purportedly transpired. According to defendant, Mr. Graci told her that he did not believe her version of the events. Defendant's mother also testified that she had a brief discussion about the case with Mr. Graci on another occasion via telephone. He told defendant's mother that if defendant went to trial and was convicted, she would have a felony record and likely go to jail for a year. Defendant's mother was not provided with any other factual information about the charges.

On August 7, 2009, less than three weeks after the arraignment, Mr. Graci filed an omnibus motion, a demand for discovery, and a request for a bill of particulars. The motion requested, inter alia, inspection of the grand jury minutes and dismissal of the indictment, suppression of physical evidence found inside defendant's apartment on the ground that the police entry into defendant's apartment was without a search warrant and that the police lacked probable cause to arrest defendant, suppression of the evidence of the undercover officer's post-arrest identification, and preclusion of any statement defendant may have made to the police because counsel had not received the requisite notice.

On September 29, 2009, the court date following defendant's arraignment, the People had not responded to Mr. Graci's motion, and they had yet to provide the court with grand jury minutes for its review. According to notes made by the presiding judge that day, the Honorable Ruth E. Smith, the People offered defendant an opportunity to enter into a drug treatment program. The case was adjourned to October 27, 2009 for decision on Mr. Graci's motion, and for a possible disposition.^[FN2]

On October 27, 2009, the People had still not provided the court with the grand jury minutes, and the case was adjourned until December 8, 2009 for decision. On December 9, 2009, Judge Smith issued a written decision on defense motions. In her notes about what occurred that day, she wrote that defense counsel was seeking a disposition sometimes given in Bronx County narcotics felony cases only with the express approval of the bureau chief, allowing defendant to plead guilty to the [*4]indictment with the understanding that if she were not arrested for a year, the People would consent to withdrawal of her plea and the case would be dismissed. Defense counsel consented to the adjournment for the People to consider whether they would make this offer.

At some point, Mr. Graci was transferred within The Legal Aid Society to work as the attorney assigned exclusively to the Integrated Domestic Violence Part. Defendant's case was then transferred to Susan Sevin, another highly experienced staff attorney within the same public defender organization. Defendant's mother met with Ms. Sevin when she was first assigned to represent defendant, and defendant's mother filled out some sort of questionnaire. Defendant, her mother, and her brother came to court on another occasion to discuss the case with Ms. Sevin. At that meeting, Ms. Sevin counseled defendant and her mother about the case outside her brother's presence. Defendant's mother testified that At the conclusion of their discussion, Ms. Sevin advised defendant that she believed it would be in defendant's best interest to accept a plea, and that she would make efforts to secure an even more advantageous disposition. Defendant's mother testified that Ms. Sevin discussed the facts about "the window sale." According to defendant and her mother, the People refused to recommend any plea other than to a felony.

On January 21, 2010, the case appeared before this Court for the first time. The People indicated that they would recommend a youthful offender adjudication, should defendant pled guilty to the felony charge with an accompanying sentence of probation. They would not consider a disposition involving the CASES program, something else advocated by defense counsel, nor would they agree to a misdemeanor disposition. The case was adjourned to March 9, 2010 for pretrial hearings and trial.

Meanwhile, defendant met with Ms. Sevin and Mr. Graci before each court appearance. She told Ms. Sevin and Mr. Graci, that she was preparing to attend college in the Fall of 2010. Defendant testified that she brought documents to court on each occasion, including her letter of acceptance to college, applications for housing, her transcript, her report cards, and the "paper for [her] placement test." Ms. Sevin continued to advise defendant that she believed defendant's best course of action would be to accept the disposition proposed by the People.

On March 9, 2010, the People stated that they were not ready for trial, and the case was adjourned to April 20, 2010. After that date, Ms. Sevin spoke once again with defendant and her mother about the case. She continued to advise them to accept the People's recommendation. On or about April 19, 2010. Ms. Sevin telephoned defendant's home to once again discuss the case. Defendant's mother agreed with Ms. Sevin's recommendation that defendant should accept the People's plea recommendation and plead guilty. Defendant was also in agreement. Neither Ms. Sevin nor Mr. Graci ever told defendant that they would not take the case to trial, if that is what defendant wanted. During the telephone conversation, Ms. Sevin explained that she would not be in court the next day, but that another staff attorney from The Legal Aid Society, Lauren Roberts, would be in court to represent defendant.

On April 20, 2010, at court, defendant and her mother discussed whether defendant would be pleading guilty. Defendant said that her mother was "worried. She didn't want me to go to jail at 17, and I agreed." Ms. Roberts, another experienced staff [*5]attorney, spoke with defendant and defendant's mother when counsel arrived at court. Ms. Roberts explained the plea allocution process, and advised defendant how to conduct herself when answering questions posed by the Court. Defendant told Ms. Roberts that she was going to plead guilty.

When the case was called into the record, Ms. Roberts indicated that defendant wished to enter a plea of guilty to criminal sale of a controlled substance in the third degree. The Court placed defendant under oath. Defendant stated that she had conversations with Ms. Roberts, Ms. Sevin, and Mr. Graci, and was satisfied with their legal representation. She stated that she was pleading guilty to criminal sale of a controlled substance in the third degree, that she was not being forced in any way to enter into the plea agreement, and that the only promise she was being made was that she would be adjudicated a youthful offender, have no criminal record as a result of the plea, and she would be sentenced to five years probation. She acknowledged that she fully understood her right to go to trial. The Court explained to defendant, "At trial, what happens is, the DA has to call witnesses and prove their case beyond a reasonable doubt." The Court specifically told defendant that she had a right to confront the witnesses at trial, to be represented by her attorney at trial, and could, if she chose to do so, testify and call witnesses in her defense. The Court asked defendant if she understood those rights, and she answered "Yes, sir." She also said that she understood that by pleading guilty she would forego her trial rights.

The Court then asked her whether "on June 2, 2009, at about 5:30 or so, in the evening, were you inside, in a building, on East 194th Street in Bronx County." Defendant said, "Yes sir." The Court then asked defendant whether at that time she, "either alone or acting with other individuals, knowingly and unlawfully sold a controlled substance to another individual." Defendant answered, "Yes, sir." The Court then asked, "What did you sell?" Defendant answered, "[c]rack." The Court asked defendant whether it was "[c]rack cocaine," and defendant responded, "Yes, sir." The Court inquired whether that was a narcotic drug, and she said, "Yes, sir." Defendant was given an opportunity to confer with counsel before the plea was entered on the record, but she said that she did not wish to do so.

The case was adjourned for sentencing and for the Department of Probation to conduct a presentence investigation. The Court told defendant that she had to "cooperate fully" with Probation, and that she had to "tell them what you told me today, that you sold crack cocaine on that date last year." Defendant was also told that if she did not do so, or abide by other terms set by the Court, she could face up to one and a half years in jail. Defendant indicated that she understood those terms, and the case was adjourned to June 3, 2010 for sentencing.

On June 3, 2010, the Court received the probation report. During her interview with Probation, defendant had not admitted selling crack cocaine. Defendant told the interviewer that she "accepted the court's plea on the advice of her attorney and because she wants to move on and go away to college." She also said that she would begin college in September 2010.

When the case was called into the record that day, the Court attempted to re-allocute defendant, but she now denied committing the crime. The Legal Aid Society asked to be relieved of their representation, and an "18B" attorney was assigned to [*6]represent defendant. That attorney subsequently filed the motion to withdraw the guilty plea. The motion was filed several months after the plea, and defendant was at liberty the entire time. The People's response was filed on January 27, 2011.

CONCLUSIONS OF LAW

At any time prior to imposition of sentence, a court is entrusted with discretion to allow a defendant to withdraw a plea of guilty and be restored to pre-pleading status. CPL § 220.60(3). The judge presiding when the guilty plea was entered is "vested with discretion in deciding plea withdrawal motions because [he is] best able to determine whether a plea is entered voluntarily, knowingly and intelligently." People v. Seeber, 4 NY3d 780 (2005) quoting People v. Alexander, 97 NY2d 482, 485 (2002).The court must allow the defendant an opportunity to present his or her claims such that it can make "an informed and prudent determination." People v. Frederick, 45 NY2d 520, 524-525 (1978). However, "[o]nly in the rare instance will a defendant be entitled to an evidentiary hearing [on such a motion]." People v. Tinsley, 35 NY2d 926, 927 (1974).

The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions. U.S. Const. 6th Amend.; NY Const., art. I, § 6. The standard is whether "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation." People v. Baldi, 54 NY2d 137, 147 (1981). In the context of a guilty plea, a defendant has been afforded "meaningful representation" when he or she receives an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel. People v. Boodhoo, 191 AD2d 448, 449 (1st Dept 1993); People v. Mayes, 133 AD2d 905, 906 (3rd Dept 1987).

Here, the minutes of the plea allocution indicate that there was nothing coercive or illegal about the guilty plea defendant entered. This Court has no recollection that there was the slightest hesitation on defendant's part to plead guilty, and there is nothing in the minutes that disclose any problems that defendant now complains of. The Court ordered the evidentiary hearing in an exercise of extreme caution, given the fact that neither the defense affirmation nor the People's response provided any type of clarity about the claims. The Court can find no reason to credit defendant's claim that her attorneys were ineffective, let alone that they coerced her behind the scenes in some way to plead guilty.

At the outset, there is little, if anything, this Court can find credible about defendant's self-serving testimony at the hearing. For example, while she insisted during her direct examination that she only spoke once with Mr. Graci about the case, the testimony, taken as a whole, indicates that she had many discussions with him about the charges, her own version of the events, and was aware of various plea options being proposed on her behalf. She also had many discussions about her desire to attend college, both in his office, and at the courthouse, sometimes with her mother present. The Court also finds incredible her claim on her direct testimony that Ms. Sevin was ineffective because she only spoke with defendant "one time" about the case when she first met her. Even defendant's mother testified that Ms. Sevin had them fill out a questionairre when she took over from Mr. Graci, and she also said that Ms. Sevin called defendant's home to discuss the case and the plea before defendant [*7]decided to plead guilty. Defendant indicated that she that "was too worried about school" to arrange any other meetings with Ms. Sevin and that she let her mother make these arrangements and have discussions. However, since defendant was not even scheduled to begin college for several months, there was absolutely no urgency for defendant to plead guilty when she did so, or talk to her attorney. With a trial looming, defendant's concern was more about the likelihood of conviction, and the possibility of a jail sentence.

Defendant's hearing testimony was not only self-contradictory, but it ironically focused on what she claims were her attorneys only concerns — namely, her desire to get a favorable disposition and go to college. She appears to have delegated legal discussions at some point to her mother. Defendant testified that when her attorneys appeared in court, she chose to have repeated conversations with them only about her school plans. There is no evidence that her attorneys used defendant's desire to attend college to coerce a plea; in fact, it looks as if they did exactly what she instructed them to do. Moreover, defendant's claim that her attorneys did nothing to negotiate the most favorable disposition possible because she claims that the People had made the same plea recommendation for nearly 10 months is contradicted by the Court's own records. Defendant was first offered drug treatment through judicial diversion, an option that, had it been appropriate, could have resulted in the case ultimately being dismissed. And, defendant ultimately acknowledged that she knew her attorneys were trying to work out different dispositions that might not have resulted in any felony conviction.

The Court's credibility determination is, of course, underscored by the fact that defendant claimed she had lied under oath when she plead guilty. And, she not only claimed that she lied when she admitted selling crack-cocaine, but she also claimed she lied at other times during the plea allocution. Although she admitted that no one was putting words in her mouth during the plea allocution, she asserted that she lied when she said she was not satisfied with her legal representation. Defendant testified that she knew that her case was on for trial when she pled guilty, that she was aware that hearings had been granted, but she also testified she lied when she said under oath that she was aware she had a right to go to trial. The Court finds all of defendant's testimony about her purported lies during her guilty plea allocution to be untrue and fabricated, perhaps to avoid the consequences of her having lied to the Department of Probation.

Given all of this, defendant's bare allegation of innocence is patently unbelievable. Defendant presented no evidence about what she told her attorneys from The Legal Aid Society, but whatever it was, she and her mother both testified that they said they did not believe her. Even defendant's mother testified that she did not know for sure whether her daughter was guilty or innocent.

"Where, as here, a defendant is represented by counsel during the plea process and enters [her] plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56 (1985). Defendant's current attorney argues that based upon his review of a single document — the "buy report" prepared by the undercover police officer in this case — he believed the case to be "manageable at trial." That statement is, in and of itself, hardly a condemnation of [*8]the advice given by the experienced attorneys from The Legal Aid Society. Of course, we will never know what defendant's prior attorneys might have thought about that report in light of what defendant told them. Nonetheless, the current attorney's opinion that defendant's case would be "manageable" to him if he went to trial is irrelevant to this decision. "Regardless of whether another attorney might have advised against taking this plea, defendant has not shown that [her] counsel's advice was outside the required range of competence." People v. Cocheekaran, 78 AD3d 551, 552 (1st Dept 2010). The evidence known to the attorneys included that fact that defendant was apprehended in her own apartment, in possession of fifteen bags of crack cocaine, and that an undercover police officer saw her at the window of that ground-floor dwelling mere moments earlier handing similar bags of cocaine to an accomplice, who sold them to that same police officer, and that the only other person in the apartment at the time was a 23 year old man. The accomplice admitted his guilt to the crime months earlier. Considering defendant has never provided an affidavit from any attorney about why they gave defendant the advice they did, or any information about what defendant told them, defendant has failed to establish that she failed to receive effective assistance when they recommended she plead guilty. Id.

Finally, the Court finds that the plea agreement negotiated by defendant's attorneys to have been quite advantageous.. The record demonstrates that defendant's attorneys did what they could to convince the People to recommend a favorable plea disposition. Although they did not convince the People to offer a plea to a misdemeanor charge or to agree to eventually dismiss the case, there was nothing at all ineffective in their advice to defendant to accept a guilty plea in a felony case that would result in her having no criminal record and avoid any jail time. This fact, along with the others discussed, belies defendant's ineffective assistance of counsel claims.

Accordingly, defendant's motion to withdraw her guilty plea is denied.

Dated: April 15, 2011_______________________________

Hon. Ralph Fabrizio