The defendant previously plead guilty to Common Law Driving While Intoxicated in violation of V.T.L. 1192(3) on October 10, 2008. That plea satisfied the charges of Resisting Arrest, P.L. 205.30 and Failure to Take the Roadside Breath Test, V.T.L. 1194 (1)(B). Subsequent to the arraignment the defendant appeared with his attorney, who requested an adjournment to submit motions. At that time the defendant was represented by Brian C. Buettner, Esq. and the People were represented by Robert King, Esq. from the Monroe County District Attorney's Office. The motions were subsequently argued and the matter was set down for a probable cause hearing on September 3, 2008. However, instead of a hearing on that date the matter was adjourned to October 10, 2008. On that day a pre-trial conference was conducted in chambers with both counsel. At that conference the People made the plea offer which resulted in the aforementioned plea. Prior to taking the defendant's plea this court advised him of his right to a jury trial, the People's burden of proof, and of the fact that the verdict of the six person jury must be unanimous. He was further advised that his lawyer could cross-examine the People's witnesses, that he could present his own witnesses, that he could testify, but if he chose not to do so that fact could not be used against him. The defendant then proceeded to waive his right to a trial. At that time the assistant district attorney engaged in a factual colloquy with the defendant. Mr. Valder then proceeded to answer in the affirmative when Mr. King asked him if he "... on March 14th 2008 did operate a motor vehicle under the influence of alcohol?" The defendant again answered in the affirmative when the court inquired

of the defendant as follows:

"And do you believe that at that point in time you could not

operate that vehicle as a reasonable and prudent person?"

Lastly the defendant admitted to drinking a "six-pack" upon further inquiry by the prosecutor.

At no time did the defendant hesitate in his responses to questions posed by court or counsel. [*2]Nor did he raise as an issue the question of the operation of his vehicle. The case was then adjourned for return of a pre-sentence investigation and sentencing to December 17, 2008. After reviewing the pre-sentence investigation, wherein the defendant claimed he was unjustly arrested, the defendant was sentenced to a one year revocation of his driver's license, the New York State Drinking Drivers Program, one Victim Impact Panel, three years probation, three work weekends a $500.00 fine and the required surcharge of $190.00.^[FN1]Despite the fact that the sentencing was about five weeks after his plea, the defendant again failed at that time to deny having operated his vehicle while intoxicated.

Then on December 23, 2010 the defendant was arrested again and charged with Per Se, Driving While Intoxicated, V.T.L. 1192(2), Common Law Driving While Intoxicated, V.T.L. 1192(3) and Excessive Tinted Glass, V.T.L. 375(12)(a)(b)(2). Since the defendant was convicted of Common Law Driving While Intoxicated V.T.L. 1192(3) in 2008, the most recent charge of Common Law Driving While Intoxicated, was charged as a felony pursuant to V.T.L. 1193(1)( c)(i ). The defendant retained his current attorney, who filed a motion, pursuant to C.P.L. 440.10(1)(h) to vacate the previous driving while intoxicated conviction. That statute states as follows: "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 upon the ground that: The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." The defendant argues that his conviction should be vacated because he was not advised by his attorney that he could have raised the defense of non-operation. Thus he was alleging that the ineffective assistance of counsel resulted in his decision to plead guilty in October of 2008 to common law driving while intoxicated, which effectively denied him his right to an attorney. In defendant's affidavit he stated as follows:

"A police officer driving by saw me and came to the car.

The officer asked me to take tests and I refused since I was not intoxicated.

I told the officer that I had not driven and was waiting for my girl friend.

He said, as I recall, the key is in the ignition, you're guilty.'

I have since been advised that was not so, but my attorney at that time [*3]

did not tell me that, and in fact, agreed with the officer's statement."^[FN2]

After oral argument of the C.P.L. 440.10 motion, the matter was set down for a hearing.At a hearing on a motion pursuant to CPL 440.10, the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion. C.P.L. 440.30(6). [See also People v Tucker, 40 AD3d 1213, 1214, 834 NYS2d 590 [2007] involving a motion to vacate a judgment of conviction based on new evidence pursuant to C.P.L 440.10(1)(g). (People v. Tankleff, 49 AD3d 160,179-180, 848 N.Y.S.2d 286,301 [2nd Dept. 2007])].

Issue Presented

Did the failure of a defense attorney to pursue a possible defense theory in and of itself deny the defendant meaningful representation of counsel?

Legal Analysis.

The defendant's motion is predicated on the allegation that "The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States" pursuant ot C.P.L. 440.10(1)(h). In this case the defense maintains that because the defense attorney, who represented the defendant in 2008, failed to advise the defendant that he could have raised a defense to the charge of Common Law Driving While Intoxicated, V.T.L. 1192(3), to wit: that he had not put his vehicle in operation, as that term is defined by the law^[FN3], he was denied his right to counsel as guaranteed by the both the United States Constitution and the New York State Constitution.^[FN4] (See United States Constitution, 6th Amendment; New York StateConstitution, Article I, Section 6.)

There are two distinct judicial standards for determining ineffective assistance of counsel. The federal courts apply a two-prong standard. (People v. Turner, 5. NY3d 476,480, 806 N.Y.S.2d 154, [2005]).

"Under the Federal Constitution, a guilty plea will be upheld as valid when it represents a voluntary and intelligent choice among alternative courses of action open to a defendant (Hill v [*4]Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 [1985]). A defendant who seeks to challenge the voluntary and intelligent character of a guilty plea on the ground of ineffective assistance of counsel must establish that defense counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty (see Strickland v Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]; Hill, 474 U.S. at 58-59)." (People v. Ortega, 2010 NY Slip Op. 51679U, 29 Misc 3d 1203A, 840 N.E.2d 123,125, 2010 NY Misc. 4682 [2010]).

The New York State courts "... have departed from the second ( but for') prong ofStrictland, adopting a rule somewhat more favorable to defendants...." (People v. Turner, 840 N.E. 2d at 125). "As a matter of New York State constitutional law, a defendant must receive meaningful representation' (see People v. Henry, 95 NY2d 563, 565, 744 N.E.2d 112, 721 N.Y.S.2d 577 [2000]; People v. Benevento, 91 NY2d 708, 713, 697 N.E.2d 584, 674 N.Y.S.2d 629 [1998]; People v. Baldi, 54 NY2d 137, 147, 429 N.E.2d 400, 444 N.Y.S.2d 893 [1981] aff'd, 96 AD2d 212, 468 N.Y.S.2d 498 [1983] lv. denied, 61 NY2d 761 [1984])." (People v. Ortega, 2010 NY Slip Op. 51679U, 29 Misc 3d 1203A, 2010 NY Misc. LEXIS 4682 [2010]).

That begs the question as to what constitutes the standard for meaningful representation. "A defendant receives the effective assistance of counsel when the totality of the circumstances of the matter allow the conclusion that a defendant received meaningful representation (see People v Baldi, 54 NY2d 137, 146-147, 429 NE2d 400, 444 NYS2d 893 [1981]). But meaningful representation does not require perfection (see People v Ford, 86NY2d 397, 404, 657 NE2d 265, 633 NYS2d 270 [1995])." (People v. Anderson, 38 AD3d 1061,1063, 831 N.Y.S.2d 582,585, 2007 NY App. Div. Lexis 2862 [3rd Dept. 2007]).In People v. Mouck, 145 AD3d 758, 535 N.Y.S.2d 273, 1988 NY App. Div. LEXIS 13002 [3rd Dept. 1988] a driving while intoxicated case, that is somewhat similar to the instant case, the defendant alleged that he was denied adequate assistance of counsel because his attorney did not request a probable cause hearing. "The court held that the failure to pursue a particular pretrial remedy does not, ipso facto, demonstrate ineffectiveness People v Rivera, 71 NY2d 705, 709). The pivotal inquiry is whether counsel's decision is premised on a legitimate, strategic basis (supra)." ^[FN5] In another DWI case the Appellate Division upheld the decision of County Court to deny the defendant's pro se C.P.L. 440.10 motion which alleged ineffective assistance of attorney for not explaining his trial defenses, based on the defendant's plea allocution. (People v. Hyson, 56 AD3d 890,892, 867 N.Y.S.2d 245,247 [3rd Dept. 2008]). Finally, it has been held that a favorable plea agreement is evidence of the effective assistance of counsel. (People v. Nieves, 302 AD2d 625, 753 N.Y.S.2d 762 [3rd Dept. 2003]).

"In the context of a guilty plea, a defendant receives meaningful

representation when he obtains an advantageous plea and nothing

in the record casts doubt on the apparent effectiveness of counsel'

(Ford, 86 NY2d at404, citing People v. Boodhoo, 191 AD2d 448,

449, 593 N.Y.S.2d 882[2nd Dept. 1993], People v. Mayes, 133

AD2d 905, 906, 520 N.Y.S.2d 276 [3d Dept. 1987]. And once a

defendant acquires a favorable plea bargain, it cannot be concluded [*5]

that the defendant was denied effective assistance of counsel' (People v.

Black, 247 AD2d 238, 668 N.Y.S.2d 364 [1st Dept. 1998], quoting

People v. Garcia, 23l5 AD2d 268, 652 N.Y.S.2d 520 [1st Dept. 1997])."

(People v. Mercado, 2011 Slip Op 51140U, 32 Misc 3d 1201A, 2011

NY Misc. LEXIS 2991 [2011]).

The fact that the defendant plead guilty after denying his guilt to the probation officerwho prepared the pre-sentence investigation is not automatically a basis for establishing a claim of ineffective assistance of counsel. In a case wherein the defendant plead guilty to one count of criminal sexual abuse in the second degree as the result of a plea agreement, the Appellate Division, Third Department, stated that:

"In any event, we are unpersuaded by defendant's argument that counsel's failure to move to withdraw his plea on the basis of his claims of innocence contained in the presentence investigation report rendered counsel's representation less than meaningful. Defendant failed to protest his innocence at sentencing when afforded the opportunity to address County Court and, given his statements that he was satisfied with counsel's services and the advantageous plea agreement negotiated by counsel that greatly reduced his sentencing exposure, we find that defendant was provided meaningful representation (see People v. White, 52 AD3d 950,951, 861 NY2d 795 [2008, lv denied 11 NY3d 742, 894 NE2d 665, 864 NYS2d 401 [2008]; People v. White, 47 AD3d at 1064)." (People v. Jeske, 55 AD3d 1057,1058, 865 N.Y.S.2d 750,752, 2008 N.Y.App.Div. Lexis 7882

[2008]).

At the C.P.L 440.10 Hearing the defendant testified on his own behalf. He first argued in his affidavit that he relied on the uncontradicted statement of the arresting officer that he was guilty because of the statement by the officer that "the key is in the ignition". However, he testified at the hearing to never exploring this issue with his attorney. A review of the court's file of the 2008 case reveals that the arrest took place at approximately 1:40 A.M. on March 14th. The defendant advised the probation officer, who prepared the pre-sentence investigation, that on March 13, 2008 between 8:30 P.M.and 10:30 P.M. that he consumed seven drinks, i.e. five beers and two mixed drinks while operating his snowmobile. He then drove his father's truck to his girl friend's house at 903 Meadow Ridge Lane in Webster and fell asleep in said truck outside his girl friend's house. It is thus conceivable that despite the colloquy that referenced the arrest date of March 14th, the defendant was admitting to the driving his vehicle in an intoxicated condition while driving his vehicle to the location in question before midnight on March 13th. Certainly, he admitted to driving a truck from his home to that of his girl friend after drinking seven alcoholic drinks in a two hour period. It is quite possible that said set of

facts influenced the advice given by counsel to his client prior to the time of the plea. It is inconceivable that the defendant did not discuss with his attorney what he in fact had to drink on the evening in question. He did refuse to take the breath test. That would have resulted in the fact of said refusal being entered into evidence at trial. V.T.L.1194(2)(f).

The defendant's original attorney also testified at the C.P.L. 440.10 hearing. He stated that he did not speak to the defendant about raising the defense of operation. However, he did testify that one of the reasons for recommending the plea deal in question was that it satisfied the other criminal charge of Resisting Arrest, P.L. 205.30, which indicates a specific strategy [*6]employed by defense counsel on behalf of his client.^[FN6] Certainly that was a reasonable strategic decision for a defense attorney to take.Nevertheless, had the defendant not engaged the ignition after being approached by the officer, it is still possible that the officer could have charged him with driving while intoxicated based on the defendant being behind the wheel of the truck in the early morning hours, with a key in the ignition and evidencing any of the various indicia of intoxication.^[FN7] Whether such a charge would have necessarily resulted in a conviction is not the issue. What he may have told his attorney about how much he had to drink and in what time frame prior to arriving in front of his girl friend's residence may have been the deciding factor in advising the defendant as to how to proceed.

"Effective assistance of counsel, therefore, is meaningful representation' not "perfectrepresentation" (People v Ford, 86 NY2d 397, 404, 657 N.E.2d 265, 633 N.Y.S.2d 270 [1995]). Hindsight does not transform tactical errors into ineffective assistance of counsel (Baldi, 54 NY2d at 151). Only errors that seriously compromise a defendant's right to a fair trial warrant a finding of ineffectiveness (People v Hobot, 84 NY2d 1021, 1022, 646 N.E.2d 1102, 622 N.Y.S.2d 675 [1995]). In the end, a claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case' (Caban, 5 NY3d at 156; People v Benevento, 91NY2d 708, 714, 697 N.E.2d 584, 674 N.Y.S.2d 629 [1998])." (People v. Prescod, 2011 NY Slip Op 32778U, 2011 NY Misc. LEXIS 5102 [2011]).

Conclusions of Law.

The term "meaningful representation" is not easily defined. Thus the allegation of ineffective assistance of counsel must be determined on a case by case basis. In this case defense counsel, Brian C. Buettner, Esq., appeared in court with his client on six occasions. He obtained discovery from the district attorney's office. He filed omnibus motions and engaged in oral argument, which resulting in the court reserving decision on the issue of sufficiency of the accusatory instrument charging the defendant with resisting arrest until a probable cause hearing could be held on the driving while intoxicated charge. Defense counsel met with the court and the district attorney for a pre-trial conference to discuss the case. Furthermore the defendant testified at the C.P.L. 440.10 hearing that he met with his attorney on "three or four" occasions. The plea agreement resolved the other misdemeanor charge of resisting arrest and the remaining traffic infraction was taken in satisfaction. Based on the defendant's record, as revealed by the pre-sentence investigation, a plea agreement involving a jail sentence would not have been excessive. As a result, the defendant received a favorable result.All these factors would point to the defendant having received meaningful representation by his attorney. Thus the defendant failed to sustain his burden of proof by a preponderance of the evidence that he did not receive meaningful representation by his attorney, even though the original defense attorney did not [*7]pursue the defense of non-operation. The defendant's motion to vacate the plea to Common Law Driving while intoxicated entered on October 10, 2010, pursuant to C.P.L. 440.10(h) is hereby denied. Since the standard of meaningful representation is a higher standard than the federal standard (People v. Turner, 840 N.E.2d at 125) there is no need to address how the federal standard applies to the facts of this case. This constitutes the decision and order of this court.

Dated: December 27, 2011

Webster, New York

____________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice