Defendant Angel Maldonado has moved pro se to set aside his conviction pursuant to CPL §§ 440.10(1)(h), which provides that "[a]t 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 . . . [t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States."^[FN1] For the reasons that follow, defendant's motion is summarily denied.

Defendant was arrested on January 26, 1987. On January 30, 1987, the Grand Jury of Bronx County returned an indictment charging him with three counts of Murder in the Second Degree (PL § 125.25[1],[3]), two counts of Attempted Robbery in the First Degree (PL § 160.15[1], [2]), Burglary in the First Degree (PL § 140.30[1]), Criminal Possession of a Weapon in the Second and Third Degrees (PL §§ 265.03, 265.02[4]), Criminal Use of a Firearm in the First and Second Degrees (PL §§ 265.09[1], 265.08[1]) and Escape in the First Degree (PL § 205.15[2]). In essence, defendant was charged with causing the death of Police Officer Michael Reidy on January 23, 1987, under two different theories, intentional murder and felony murder committed during an attempted robbery.^[FN2] [*2]The People's voluntary disclosure form stated that on January 26, 1987, "Defendant admitted to intending to [r]ob P.O. Reidy following him from the check cashing place pointing a gun demanding money from P.O. Reidy and shooting him with a loaded .32 caliber pistol."

On December 19, 1987, a jury convicted defendant of Murder in the Second Degree (PL § 125.25[3]), Attempted Robbery in the First Degree (PL § 160.15), and Escape in the First Degree (PL § 205.15). On January 13, 1988, defendant was sentenced to concurrent terms of imprisonment of twenty-five years to life for the Murder conviction and five to fifteen years for the Attempted Robbery conviction. Defendant was also sentenced to a consecutive term of imprisonment of two and one-third to seven years for the Escape conviction.

Defendant's conviction and sentence were affirmed by the Appellate Division, First Department (People v. Maldonado, 169 AD2d 567 [1st Dept], lv denied, 77 NY2d 963 [1991]).

Defendant argues that he received ineffective assistance of counsel during the plea bargaining process because "his assigned attorney was offered a plea bargain . . . and defendant was never advised of this highly favorable plea" (Def Aff p 3). Defendant now claims that he would have accepted that offer if he had known of it (Def Aff ¶¶ 2,4). In support of this claim, defendant relies on two documents, described more fully below. In his supplemental brief, defendant also urges this Court to consider a recent decision by the Honorable Seth Marvin holding that defendant David Bryant's trial counsel, the same attorney who represented defendant here, provided ineffective assistance at Bryant's 1976 trial for the rape and murder of an eight-year-old girl. After an extensive hearing, Justice Marvin held that in failing to consult with a serologist to have Bryant's blood type and secreter status determined, defense counsel "failed to present evidence that could have created a reasonable doubt as to [Bryant's] guilt." People v. Bryant, 41 Misc 3d 554, 570, 572 (Sup Ct, Bronx County 2013). Defendant now argues that this decision:

sheds doubt on Mr. Auerbach's representation during defendant's trial in 1988. For instance, did Mr. Auerbach change his way of practicing - investigation.

Then lies the question of defendant in his current 440.10 motion. Being unable to obtain certain documents, in which the People have admitted that defendant attempted to retrieve but the documents were unfound. Perhaps, due to the form of practice that Mr. Auerbach was not practicing - such as in the 1975 case - the documents present could not be found.

(Def Supp Br p 2.)

The People oppose the motion, arguing that "defendant's inconsistent, unsubstantiated and self-serving contention should be rejected without a hearing because his allegation of a plea offer is made solely by him, and under the circumstances of this case, there is no possibility at all that such allegation is true [citations omitted]" (Sarver Aff p 6). The People have submitted, inter alia, an affirmation from the former Assistant District Attorney who handled this case, who affirms that she never made any plea offer to defendant (Sugarman Aff p 3), as well as an affirmation from trial counsel, who affirms that it was his practice to always immediately convey any plea offers to his clients (Auerbach Aff p 2). With respect to defendant's supplemental brief, the People argue that Justice Marvin's decision in Bryant has no bearing here because it dealt with entirely different issues.

"[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. . . . When defense counsel [has] allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel [has] not render[ed] the effective assistance the Constitution requires." Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012). To demonstrate a Sixth Amendment violation, the defendant must demonstrate that counsel was ineffective and that there was resulting prejudice. Id. at 1405. Where, as here, the allegation is that counsel never communicated a favorable plea offer,

defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

Id. at 1409.

CPL § 440.30(4)(d) provides, in relevant part, "Upon considering the merits of the motion, the court may deny it without conducting a hearing if . . . [a]n allegation of fact essential to support the motion . . . 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 . . . under these and all other circumstances attending the case, there is no reasonable possibility that such allegation is true." For the reasons that follow, defendant's claims here are made solely by him, are both unsupported and indeed contradicted by other evidence, and there is no reasonable possibility they are true.

First, as the People correctly argue, defendant's present claims regarding a plea offer are inconsistent. At the outset, he claims that the prosecution made a plea offer to his attorney of 15 years to life but his attorney never communicated that offer to him (Def Aff pp 1, 2). He also claims that, prior to his arraignment, the prosecution made a plea offer of "twelve (20) [sic] years to life" (Def Aff p 3). At yet other points, defendant claims the People's offer was "20 years to life" (Def Aff pp 5, 7, Exh A p 1 ¶ 2). Moreover, defendant does not address how, some 26 years after he was convicted at trial, he has now learned of the existence of a plea offer that was allegedly conveyed to trial counsel but not to him.

Second, defendant's attempts to bolster his claim with documents attached as exhibits to his motion and his reply affidavit fail, because they do not establish that any plea offer was ever made. Defendant's motion includes, as Exhibit B, a reply from the Bronx County District Attorney's Office to a FOIL request for "[t]he sentence allocation sheet indicating the plea bargain from the Assistant District Attorney to defendant's attorney" and "[a]ny and all letters from the Assistant District Attorney indicating any plea bargain conveyed to defendant's attorney." The fact that the District Attorney's Office's Records Access Officer found no such documents in the office's trial folder does not mean, as defendant suggests, that counsel was ineffective. Rather, it suggests that no such documents existed. Defendant's reference to a CRIMS Appearance History print-out bearing the notation "02/17/1987 (ARR) . . . PNG . . ." does not mean that there was any "Plea Negotiation Guilty" (Deft's Reply Aff and Memo of Law p 2), but rather that at defendant's arraignment on February 17, 1987, a plea of not guilty was entered.

Third, defendant's claim that plea offers were made is flatly contradicted by the affirmation [*4]of Risa S. Sugarman, Esq., the former Assistant District Attorney who prosecuted this case. Ms. Sugarman states that she has "specific memories of the investigation, arrest and trial" of this case. She supervised defendant's arrest on January 26, 1987, presented the case to a grand jury, secured an indictment, and ultimately tried the case before a jury. Ms. Sugarman states unequivocally that "[n]o plea offer was ever contemplated or made for this defendant." In addition, Ms. Sugarman has no recollection of ever being asked even to consider a plea offer by the court or defense counsel (Sugarman Aff ¶¶ 3,7). Ms. Sugarman's affirmation is supported by the affirmation of defendant's trial attorney, Paul I. Auerbach, who affirms that, while he does not specifically recall defendant's case, "it was [his] practice to always immediately convey to [his] clients any plea offers that were discussed in their cases, and to advise [his] clients of the best course of action" (Auerbach Aff ¶ 2).

Accordingly, defendant has failed to provide any evidence of the existence of any plea offer besides his own self-serving and inconsistent statements. Those claims are directly contradicted by the Assistant District Attorney who prosecuted the case. This Court concludes that there is no reasonable possibility that defendant's present claim that a plea offer was made is true. See People v. Coleman, 37 Misc 3d 1225(A) (Sip Ct, Kings County 2012) (denying defendant's motion to set aside judgment where defendant provided only self-serving allegations concerning the plea process which were unsupported by any other evidence and there was no reasonable possibility that claims were true); People v. Baker, 36 Misc 3d 1205(A) (Sup Ct, Kings County 2012) (to the same effect).

Based on the foregoing, defendant has not demonstrated that counsel was ineffective for failing to communicate a favorable plea offer, because no plea offer was ever made in this case. Nor can defendant demonstrate prejudice under Frye, because he cannot "demonstrate a reasonable probability that [he] would have accepted" a plea offer of 12, 15 or 20 years to life even if one had been made. 132 S Ct. at 1409. Defendant's behavior throughout the trial demonstrated the wish to avoid conviction, not to accept responsibility and plead guilty. Not only did he attempt to escape after his arrest (Sentencing Mins of January 13, 1988 p 15), he offered an alibi witness at trial (id. p 23), unsuccessfully attempted suicide and "presented himself with some falsified hysteria at the beginning of this trial" (id. pp 14, 15), "passed out during the course of [the] trial" when his girlfriend testified about his confession to her (id. p 15), and then appeared twice for sentencing claiming not to know who Mr. Auerbach was or what was happening (id. pp 4-5, 6, 7). The sentencing court noted that "no less than four psychiatrists, perhaps five" had examined defendant and "[a]ll five . . . have found him to be faking mental symptoms" (id. p 14).^[FN3] When the presentence report was prepared defendant denied the charges.^[FN4]

Finally, to the extent that defendant's supplemental brief may be viewed as a challenge to defense counsel's representation during the trial, this Court declines to consider such a claim because [*5]defendant himself concedes that he "is only raising a plea bargain issue" (Def Supp Br. p 2). This Court also declines defendant's invitation to set aside his conviction or order a hearing in order to rummage through trial counsel's representation of other criminal defendants in unrelated cases to find a reason to set aside this conviction. As the People correctly argue, the issues and holding in People v. Bryant, supra, are utterly irrelevant to the discrete issue here, which is confined to the limited question of whether counsel failed to communicate a favorable plea offer to defendant. This Court has answered that question in the negative.

For the reasons set forth above, defendant's claim of ineffective assistance of counsel is without merit. The motion to vacate the judgment is denied.

Dated:Bronx, New York

January 23, 2014

_______________________________

Miriam R. Best

Acting Justice of the Supreme Court