On September 23, 2009, the police executed a search warrant at a location in the Bronx and recovered glassine envelopes containing heroin, ziplock bags containing cocaine and marijuana, and related drug paraphernalia. Defendant was outside the location at the time and admitted that the heroin belonged to him. Defendant was arrested and charged in a felony complaint with criminal possession of a controlled substance in the third degree and related charges. On October 9, 2009, before the Hon. Robert Seewald, defendant signed a cooperation agreement, waived indictment and agreed to be prosecuted by a superior court information (SCI), pled guilty to the sole count contained in the SCI of criminal possession of a controlled substance in the third degree, a Class B felony, and was released from custody. Defendant appeared before this Court on December 9, 2009 and February 11, 2010. On April 7, 2010, defendant failed to appear in court, and, on July 27, 2010, this Court issued a bench warrant. On September 18, 2013, defendant was taken into custody on an arrest warrant having been charged in Indictment No. xxx with conspiracy in the first degree and criminal sale of a controlled substance in the second degree and related charges.^[FN1] Defendant has not yet been sentenced with respect to the instant indictment.

Defendant now moves to withdraw his guilty plea, or, in the alternative, moves for an evidentiary hearing with respect to whether he made a good-faith effort to abide by the terms of the cooperation agreement. For the reasons stated below, defendant's motion is denied.

Initially, defendant's motion to withdraw his guilty plea is denied based upon the language in the cooperation agreement entered into by the parties. The cooperation agreement expressly states that if the District Attorney's Office (DAO) determines that defendant has not provided substantial assistance to the prosecution, such a determination will release the DAO from any obligation to make a recommendation to the sentencing court, but will not entitle defendant to withdraw his plea once it has been entered. As explained more fully below, because the DAO has determined that defendant did not provide substantial assistance and defendant does not allege that that determination was made in bad faith, under the terms of the cooperation agreement, defendant is not entitled to withdraw his guilty plea.

Moreover, based upon the totality of the circumstances, defendant's plea was knowing, intelligent, and voluntary. As the transcript of defendant's plea allocution indicates, prior to pleading guilty, defendant conferred with counsel and understood that he had a right to have the evidence regarding his case presented to a Grand Jury and that he was foregoing that right. Defendant then agreed to be prosecuted by superior court information, which both he and his counsel signed in open court. The SCI charged defendant with one count of criminal possession of a controlled substance in the third degree and alleged that on September 23, 2009 at 5:40 p.m., at a certain location in the Bronx, defendant knowingly and unlawfully possessed over one-half ounce of a narcotic drug, crack-cocaine. Immediately after signing the SCI, defendant pled guilty to criminal possession of a controlled substance in the third degree. The Court next explained to defendant the rights he would be waiving by pleading guilty and defendant waived each of these rights. After ascertaining that defendant was pleading guilty on his own free will and that nobody had forced or induced him to plead guilty, ADA Terry Gensler placed on the record the terms of the cooperation agreement that had been entered into by the parties, which were a condition of the plea. Initially, all of the terms of the cooperation agreement were incorporated by reference in the plea. Defendant acknowledged that he had read and had understood the terms of the agreement, that he had signed the agreement, that he specifically understood that it was the District Attorney's Office that would determine whether he had fulfilled the terms of the agreement, and that he would be sentenced to a determinate ten year state prison sentence followed by five years of post-release supervision if it was determined that he failed to cooperate. The Court accepted defendant's plea, released him from custody, and sealed the minutes of the plea proceeding.

The record thus belies defendant's claim that he was not in the "right state of mind," and that he was "too stressed out" and "depressed" to have entered a knowing and voluntary plea. In this regard it is significant that defendant never indicated to the Court or counsel that he was suffering from a mental disability that interfered with his ability to comprehend what was being said to him or that he did not understand the nature of the charge. Equally unavailing is defendant' contention with respect to the sufficiency of the factual allocution, specifically, that he was not properly allocuted with respect to the illicit substance he possessed. Although defendant did not explicitly admit that he knowingly possessed over one-half ounce of cocaine on September 23, 2009, the record indicates that just prior to entering his guilty plea, defendant and his counsel both read and signed the SCI, which contained all of the elements of the crime charged therein as well as the factual basis for the charge. Thus, when the plea allocution is read in conjunction with the language contained in the SCI that was read and signed by defendant in [*2]open court just prior to his plea, there exists a factual basis for the plea. Accordingly, defendant's motion to withdraw his guilty plea is denied.

Defendant's motion for a pre-sentencing, evidentiary hearing with respect to whether he made a good-faith effort to comply with the terms set forth in the cooperation agreement likewise is denied. Initially, the Court notes that, other than asking for a sentence substantially less than ten years, defendant does not request any other specific relief in his motion such as compelling the enforcement of the provision of the cooperation agreement that requires the prosecution to make a recommendation regarding his assistance to the Court. In order for the Court to determine an appropriate sentence, it is not required to conduct such an evidentiary hearing. See CPL Article 380.

In all likelihood defendant fails to ask for the enforcement of the cooperation agreement's recommendation clause because he not only violated the agreement by committing further crimes, but he also did not render anything close to the assistance necessary to require the prosecution to make a favorable recommendation to the Court. The People aver that defendant failed to provide any assistance to law enforcement as he failed even to answer phone calls made to him by law enforcement and to maintain contact with ADA Christiana Stovar. (See Affirmation of ADA Terry Gensler at pp. 2-3).^[FN2] Defendant does not contest these averments, but instead rests his claim for a hearing upon two grounds: 1) that his attorney at the time told him that the detectives who were his handlers were not giving him appropriate credit for his cooperation; and 2) that his handlers were placing him in situations where his cover would be blown and his life would be thereby endangered. (See Affirmation of Arlen Yalkut at ¶7.) With respect to the first of defendant's contentions, defendant fails to offer any specific details regarding the extent of his cooperation. With respect to the latter claim, defendant also fails to offer any specificity as to what situations he is referring to, nor does he offer any corroboration for his bald assertion. In any event, even if the Court were to accept this completely unsubstantiated claim, fear for one's safety does not provide a basis for defendant's failure to cooperate. Indeed, if defendant had a legitimate fear for his safety, the cooperation agreement required him to advise the DAO of such threats and for the DAO to take appropriate measures to protect defendant and his family. This he did not do. Instead, in March 2010, defendant, by his own admission, flew to Puerto Rico without informing law enforcement or the Court, continued to engage in narcotics trafficking, and remained at large until he was arrested in September 2013. (See Affirmation of Arlen Yalkut at ¶11.)

Based upon defendant's indictment for two narcotics-related offenses that were allegedly committed within six months of his signing the cooperation agreement, his uncontroverted failure to provide substantial assistance to law enforcement, his lack of a legitimate excuse for such failure, his absconding during the period when he was supposed to be cooperating, and his [*3]failure even to allege bad faith on the part of law enforcement, a full evidentiary hearing is not required. See United States v. El-Gheur, 201 F.3d 90 (2d Cir. 2000)(defendant who had absconded forfeited any right to withdraw his plea or to compel the government to file a motion recommending a downward departure for substantial assistance he may have had based on his cooperation agreement); United States v. Roe, 445 F.3d 202, 207-08 (2d Cir. 2006)(a court may review a prosecutor's refusal to recommend a downward departure for substantial assistance to determine if the prosecutor acted in bad faith; however, defendant must make a showing of bad faith by the government to trigger some form of hearing on that issue); United States v. Imitiaz, 81 F.3d 262, 264 (2d Cir. 1996)(no hearing required where defendant simply asserted his allegation that government acted in bad faith and did not proffer any evidence contradicting the government's explanation for its refusal to recommend a downward departure).

Accordingly, defendant's motion for an evidentiary hearing with respect to whether he made a good-faith effort to comply with the terms of the cooperation agreement is denied. However, prior to sentencing defendant, the Court will give defendant ample opportunity to place on the record, and will give due consideration to, any cooperation he provided to law enforcement and any reasons for his failure to do so. See CPL § 380.50(1).

This is the decision, order and opinion of the Court.

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