The defendant moves to vacate his judgment of conviction, pursuant to CPL §§440.10(1)(b) & (h), on the grounds that he was denied effective assistance of counsel and due process by the hearing court's finding of probable cause.

In deciding this motion, the Court has reviewed the defendant's motion, the People's opposition papers, the defendant's reply and the court file including the appellate briefs.

On October 20, 1997, at 2:15 p.m., the defendant and co-defendant Clarence Jeffreys held up a pet store at 1123 Broadway in Brooklyn at gunpoint. They took jewelry and money.

Later that evening, at 8:15 p.m., they robbed patrons of a grocery store at gunpoint at 575 Woodward Avenue in Queens, near the Brooklyn border. They took money.

Shortly thereafter, at 9:00 p.m., they robbed a second grocery store at gunpoint at 444 Melrose Street in Brooklyn. They came into the store, ordered a sandwich, the co-defendant pointed a gun at the store manager, they took money from the cash register and the pockets of the store manager and his son. Three to four other people were pushed to the rear of the store. Luis Lema, a patron, did not understand English. He did not follow the defendant's orders and tried to leave the store. The defendant pushed, kicked and struck him in the head. He then pointed his gun at Mr. Lema and pulled the trigger. It did not go off. He then pulled the trigger a second time shooting Mr. Lema in the back. He and his co-defendant fled. Mr. Lema died as a result of the gunshot.

The defendant and his co-defendant were subsequently charged under Kings County Ind. #11358/97 with two counts of Murder in the Second Degree (intentional and felony murder) and eight counts of Robbery in the First Degree, et al.

After the pretrial hearings had concluded, the hearing court spoke directly to the defendant about the possible outcome of a trial vis-a-vis taking a plea to thirty (30) years to life. The hearing court advised the defendant that, while thirty (30) years to life seemed like a long time, he could get much more time after trial. The Court told the defendant that: "Because there is a very reasonable view of the evidence when he had shot him, that was an independent crime of the robbery." People's [*2]Opposition papers, p. 6. The Court went on to explain that, if the jury convicted him of intentional murder, he could get twenty-five (25) years to life on that count alone and could also get additional twelve and one half (12 1/2) to twenty-five year sentences for each of the robberies for a total of sixty-two and one half (62 1/2) years to life.

The defendant and co-defendant were jointly tried before separate juries. The defendant was convicted of one count of Murder in the Second Degree (felony murder) and three counts of Robbery in the First Degree. The defendant was sentenced to twenty-five years to life on the felony murder count and six to twelve (12) years for each robbery conviction. The robbery sentences were to be served consecutively and consecutively to the murder sentence.

The defendant appealed from the judgment including that the sentences were excessive.

On June 25, 2001, the Appellate Division affirmed the judgments of conviction but modified a sentence. The Appellate Division modified the sentence for Robbery in the First Degree under the fourth count of the indictment by running it concurrently with the felony murder conviction because "the robbery constituted the felony element of the felony murder offense." People v. McCoy, 284 AD2d 554, 555 (2d Dept. 2001). Leave to appeal to the Court of Appeals was denied. People v. McCoy, 97 NY2d 707 (2002).

CPL §440.10(1)(b) provides that a judgment may be vacated upon the ground that "[t]he judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or prosecutor."

CPL §440.10(1)(h) provides that a judgment may be vacated upon 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."

The defendant contends that his attorney's failure to correct an alleged misstatement of law by the court that he faced a maximum of sixty two and one-half (62 1/2) years to life constituted ineffective assistance of counsel. The defendant asserts that the Appellate Division's modification of his sentence evinces his attorney's failure to ascertain the potential sentencing range. The defendant maintains that had counsel noticed this error and had advised him of a potential maximum sentence of fifty (50) years to life, he could have negotiated a better plea. The defendant contends that: "The fact that he was given inaccurate information, without counsel intervening to ascertain and correct it, should show as evidence that counsel never went over the procedures of sentencing with the defendant." The defendant argues that had counsel properly advised him on how these sentences could have been imposed upon conviction after trial he would have taken a plea.

The defendant's contentions are without merit. The defendant asserts that his counsel's failure to recognize that one of the three robberies, i.e., the 444 Melrose Street robbery, could not result in a sentence consecutive to the intentional murder sentence denied him effective assistance of counsel.

However, if a jury had convicted the defendant of intentional murder and the three robberies, the defendant could have received consecutive sentences of twenty-five years to life on the intentional murder count and twelve and one-half (12 1/2) to twenty-five (25) years on each Robbery in the First Degree count as had been represented to him by the hearing court. PL §§70.02(3),(4) (Law of 1997).

"PL §70.25(2) prohibits consecutive sentences for two or more offenses committed through [*3]a single act or omission or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.'" People v. Sims, 18 AD3d 372, 373 (1st Dept. 2005), quoting PL §70.25(2). However, "where the crimes are committed through separate and distinct acts, even though part of a single transaction, consecutive sentences are possible regardless of whether the statutory elements of the offenses overlap." People v. Salcedo, 92 NY2d 1019, 1021 (1998); People v. Brown, 80 NY2d 361, 364 (1992).

The defendant believes that fifty (50) years to life was his actual potential maximum sentence at the time that he was offered a plea bargain. However, any sentences on the 1123 Broadway, 575 Woodward Avenue and 444 Melrose Street robberies could have run consecutively to each other and consecutively to a sentence on a intentional murder conviction for the events at 444 Melrose Street. Those crimes were distinct and separate acts, committed against different individuals and none was a material element of the other.

Specifically, the robbery at 444 Melrose Street was separate and distinct from the intentional murder at that location as the robbery was not a material element of the intentional murder. "[W]hen separate offenses are committed through separate acts, though they are part of a single transaction" a trial court retains the discretion to impose consecutive sentences. People v. Brown, supra. Thus, consecutive sentences would have been permissible. PL §70.25(2); People v. Brathwaite, 63 NY2d 839 (1984); People v. Bryant, 39 NY2d 768 (2d Dept. 2007); People v. Williams, 245 AD2d 400 (2d Dept. 1997); People v. Hladky, 229 AD2d 400 (2d Dept. 1996).

Thus, based on the charges contained in the indictment, including intentional murder, the defendant did face a potential maximum sentence of sixty-two and one half (62 1/2) years to life.

Consequently, the trial court did not err in its statement to the defendant. At the time that the court spoke to the defendant, the charges in the indictment could have warranted sentences totaling sixty-two and one half (62 1/2) years to life. Thus, he was not denied the effective assistance of counsel. It is clear that his attorney had adequately represented him during the plea negotiations.

Even if the court erred in its advice to the defendant by twelve and one half (12 1/2) years and the defendant's potential maximum sentence had been fifty (50) years to life, it strains credulity to believe that the defendant would have taken the thirty (30) year plea offer. In addition, it is doubtful that the People would have made an offer below thirty (30) years as the prosecution had very convincing evidence of the defendant's guilt on all counts, i.e., eyewitness testimony and the defendant's oral and videotaped inculpatory statements. In fact, in the court's experience, a defendant is more likely to take a plea when the maximum sentence is higher rather than lower. Clearly, the defendant did not take the plea when he was told that the maximum sentence was sixty-two and one half (62 1/2) years to life. A potential maximum sentence twelve and one half (12 1/2) years lower would not likely have convinced the defendant to take the plea. His argument that he would have taken a plea under these circumstances is entirely speculative.

The defendant next contends that his due process rights were violated when the hearing court based its probable cause determination on the erroneous fact that he had been pointed out by the co-defendant's girlfriend at a different location. The defendant maintains that he was seized in the middle of Pulaski Street between Tompkins and Throop and not on Tompkins and Throop as testified to by the arresting detective.

The defendant's claim is procedurally barred as this claim could have been reviewed by [*4]examining the hearing record on direct appeal. The defendant unjustifiably failed to raise this issue and therefore the claim must be denied. CPL §440.20(2)(c).

In any event, the police had probable cause to arrest the defendant based on a statement that the co-defendant had made giving the police the name "Russell" and the point-out by the co-defendant's girlfriend who knew the defendant.

These material facts were not undermined or tainted by the hearing court's alleged failure to note the exact location of the defendant's arrest.

Finally, the defendant contends that his attorney was ineffective in that he failed to elicit facts regarding the illegality of the co-defendant's arrest and detention which resulted in the co-defendant's inculpatory statements. The defendant maintains that had the suppression court been aware that the co-defendant's statements had been obtained in violation of his Fourth Amendment rights, the co-defendant's statements inculpating him could not have been used as a basis for his arrest. Thus, the suppression of the defendant's statements would have been warranted as the fruit of his co-defendant's illegal arrest.

The "[d]efendant lacks standing to challenge the legality of [the co-defendant's] arrest, detention and statements and the use of the same as a basis for his arrest, even assuming each was constitutionally infirm." People v. Hamilton, 232 AD2d 899, 900 (3rd Dept. 1996), citing People v. Henley, 53 NY2d 403 (1981); People v. Irby, 162 AD2d 714 (2d Dept. 1990); People v. Williams, 115 AD2d 627 (2d Dept. 1985).

Consequently, the defense counsel's failure to contest the use of the co-defendant's statements as illegally obtained did not constitute ineffective assistance of counsel. Counsel would have been precluded from going into issues for which the defendant lacked standing.

The defendant's motion to vacate the judgment pursuant to CPL §440.10(1)(b), based on his mistaken belief that the trial court had misrepresented to him that he faced a maximum sentence of sixty-two and one-half (62 1/2) years to life, is denied. CPL §440.30(4)(d).

Accordingly, the defendant's motion, pursuant to CPL §§440.10(1)(b) & (h), to vacate his judgment of conviction, is denied. The defendant's moving papers do not allege any ground constituting a legal basis for the motion. CPL §440.30(4)(a).

This opinion shall constitute the decision and order of the court.

The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, NY 11201 for a certificate granting leave to appeal from this determination. This application must be made within thirty days of service of this decision. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted [22 NYCRR 671.5].

The application must contain your name and address, indictment number, the questions of law or fact which you believe ought to be reviewed and a statement that no prior application for such certificate has been made. You must include a copy of the court order and a copy of any opinion of the court. In addition, you must serve a copy of your application on the District Attorney.

Kings County District Attorney

Appeals Bureau

350 Jay Street

Brooklyn, NY 11201

Kings County Supreme Court

Criminal Appeals

320 Jay Street

Brooklyn, NY 11201

Dated: September 14, 2011

Brooklyn, New York

William E. Garnett

A.J.S.C.