The People of
the State of New York,
against
Adel Almontaser, Defendant.
|
95X041932
The People — Robert T. Johnson, District Attorney, Bronx County by
Diane A. Shearer, Assistant District Attorney
Defendant — Paul S. Brenner, Esq.
Armando Montano, J.
Defendant moves for an order, pursuant to CPL § 440.10(1)(h), vacating his
judgment of conviction on the grounds that the judgment was procured in violation of his
statutory and constitutional rights, or in the alternative, for a hearing to determine the
issues raised.
On December 5, 1995, defendant withdrew his plea of not guilty, waived prosecution
by information, and pled guilty to one count of Attempted Criminal Possession of a
Weapon in the Fourth Degree, a B misdemeanor. The promised sentence was a fine in
the amount of $500.00 and the failure to pay the fine would result in a 30-day jail
sentence. Defendant subsequently paid the fine. To date, defendant has not filed a Notice
of Appeal.
Defendant asserts that during his plea allocution, the Court never advised him of the
legal consequences of pleading guilty and never inquired as to whether he was a citizen.
Had he been informed of the legal consequences of pleading guilty, defendant avers that
he would not have pled guilty. Although the Court may deny the motion without a
hearing, defendant argues that the Court may exercise its discretion and grant the motion,
pursuant to CPL § 440.10(3)(c), in the interest of justice and for good cause shown.
Therefore, defendant requests a hearing to determine whether he was afforded effective
assistance of counsel and whether his plea passes constitutional muster since the Court
failed to apprise him of his rights and the ramifications of his plea.
In support, defendant submits a transcript of the plea allocution as well as a
Certificate of Disposition. The Certificate of Disposition indicates that defendant was
arraigned on the following charges: Criminal Possession of a Weapon in the Third
Degree (PL § 265.02); Firearms (AC § 10-131); Menacing in the Second
Degree (PL § 120.14); and Criminal [*2]Possession
of a Weapon in the Fourth Degree (PL § 265.01).
The People note that defendant, after having failed to perfect an appeal, now seeks to
vacate his conviction nineteen years after the judgment of conviction was issued. The
People assert that the instant motion must be denied pursuant to CPL § 440.10(2)(c)
because his claim is record-based and could only have been brought on direct appeal.
The People further assert that there is no statutory authority to grant defendant's motion
in the interest of justice.
With respect to defendant's claim of ineffective assistance of counsel, the People
argue that this claim should be summarily denied for defendant's failure to specifically
allege any facts in support thereof. The People point out that defendant fails to provide
both the name of his prior attorney and an affidavit from that attorney detailing the sum
and substance of any conversations he had with defendant regarding the consequences of
pleading guilty. Notwithstanding the deficiencies in defendant's moving papers, the
People argue that based upon the charged offenses, including two class A misdemeanors,
at a minimum, defendant faced a term of imprisonment of up to one year. However, due
to the efforts of his trial counsel, defendant was permitted to plead guilty to Attempted
Criminal Possession of a Weapon in the Fourth Degree, a class B misdemeanor, avoid
jail time, and only pay a $500.00 fine. Having received such a favorable plea bargain, the
People argue that defendant undoubtedly received the effective assistance of
counsel.
CPL § 440.10(1)(h) provides that:
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: [t]he
judgment was obtained in violation of a right of the defendant under the constitution of
this state or of the United States.
"A judgment of conviction is presumed valid, and the party challenging its
validity has a burden of coming forward with allegations sufficient to create an issue of
fact." People v. Session, 34 NY2d 254, 255 (1974). A motion to vacate a
judgment is not to be used as a substitute for a direct appeal. People v. Cuadrado, 9 NY3d
362 (2007); People v. Cooks, 67 NY2d 100 (1986). Rather, CPL §
440.10 is designed to permit a defendant to challenge a judgment of conviction based
upon matters that do not appear on the face of the record.
A court must summarily deny a 440 motion where "sufficient facts appear on
the record of the proceedings" and the defendant unjustifiably failed "to take or perfect
an appeal during the prescribed time period ." CPL § 440.10(2)(c). In contrast, a
court may summarily deny a motion to vacate a judgment where "the motion is based
upon the existence or occurrence of facts and the moving papers do not contain sworn
allegations substantiating or tending to substantiate all the essential facts ." CPL §
440.30(4)(b).
Defendant contends that his guilty plea was not knowingly and voluntarily
made as the plea court failed to apprise him of his Boykin [FN1]
rights and failed to inquire as to his immigration status. Due process requires that a guilty
plea be made knowingly and voluntarily. See, Bousely v. U.S., 523 U.S.
614 (1998); Brady v. U.S., 397 U.S. 742 (1970). In taking a plea, the Court [*3]must ensure that the defendant "has a full understanding of
what the plea connotes and of its consequences." Boykin v. Alabama, 395 U.S.
238, 244 (1969). The Court of Appeals has repeatedly rejected requiring "a uniform
mandatory catechism of pleading defendants in favor of broad discretions controlled by
flexible standards." People v.
Alexander, 19 NY3d 203, 219 (2012). A guilty plea "will not be invalidated
solely because the Trial Judge failed to specifically enumerate all the rights to which the
defendant was entitled and to elicit from him or her a list of detailed waivers before
accepting the guilty plea.'" People v. Tyrell, 22 NY3d 359, 365 (2013) quoting
People v. Harris, 61 NY2d 9, 16 (1983).
This Court finds that the plea allocution was inadequate as there was no
discussion whatsoever of defendant's Boykin rights. Consequently, the record
fails to sufficiently establish defendant's understanding and waiver of his constitutional
rights.
However, with respect to defendant's claim that his conviction should be
vacated due to the failure of the plea court to inquire as to his immigration status, this
Court finds such argument to be wholly without merit. The Court must inform a
defendant of the direct consequences of entering a guilty plea. A direct consequence "is
one which has a definite, immediate and largely automatic effect on defendant's
punishment." People v. Ford, 86 NY2d 397, 403 (1995) overruled on other
grounds by People v. Peque, 22 NY3d 168 (2013). The Court has no corresponding
obligation to inform a defendant of the collateral consequences that may be attached to
their convictions. A collateral consequence is "peculiar to the individual and generally
result from the actions taken by agencies the court does not control." Id. at
403.
This Court notes that defendant does not assert anywhere in his moving
papers that he is facing or has faced any adverse immigration consequences as a result of
his judgment of conviction. Regardless, at the time defendant's plea of guilty was entered
in 1995, deportation was considered a collateral consequence. Id. at 403-404. As
a collateral consequence, the plea court did not have to advise defendant of the
possibility of deportation during the plea allocution.
Notwithstanding the foregoing, "a claim of a deficiency in a plea allocution
is record-based and therefore may not be raised by way of a 440.10 motion." People v. Simpson, 120 AD3d
412 (1st Dept. 2014); see also, Cooks, 67 NY2d 100; People v. Acevedo, 104 AD3d
610 (1st Dept. 2013); CPL § 440.10(2)(c). "Only in the unusual situation that
sufficient facts with respect to the issue do not appear on the record is a CPL 440.10
motion to vacate available as a means of review." Cooks, 67 NY2d at 104.
Defendant's claims regarding the sufficiency of the plea allocution is readily apparent on
the face of the record and should have been raised on direct appeal. It is undisputed that
defendant failed to take or perfect an appeal. Moreover, defendant has failed to provide
an explanation for his failure to do so. As such, the branch of defendant's motion
challenging the sufficiency of the plea allocution is denied.
Despite the fact that the branch of defendant's motion challenging the plea
allocution is procedurally barred by CPL § 440.10(2)(c), defendant urges this Court
to exercise its discretion and vacate his conviction in the interest of justice and for good
cause shown pursuant to CPL § 440.10(3)(c). Yet, defendant's reliance on CPL
§ 440.10(3)(c) is misplaced as this section only relates to the Court's permissive
authority to deny an otherwise meritorious claim for vacatur. Where CPL §
440.10(2)(c) mandates denial of defendant's record-based claim, there is no authority for
this Court to vacate a conviction in the interest of justice and for good cause shown.
Finally, without setting forth any arguments or factual allegations in support
thereof, defendant also requests a hearing to "determine whether [he] was afforded the
effective assistance of counsel." Affirmation of defendant's counsel at 5. Not only has
defendant failed to [*4]submit an affirmation from his
trial counsel detailing his strategic decisions or an explanation as to the absence of such
an affirmation (People v. Stewart, 295 AD2d 249 [1st Dept. 2002]; People v.
Fu Chen, 293 AD2d 362 [1st Dept. 2002]), defendant has also failed to explain, let
alone mention, how he was deprived of his right to the effective assistance of counsel.
Pursuant to CPL § 440.30(4)(b), the branch of defendant's motion raising a claim of
ineffective of counsel is hereby denied without a hearing as defendant has failed to raise
an issue of fact.
Even if this Court were to overlook the deficiencies in the instant motion,
this Court would still deny defendant's motion as his claim of ineffective assistance of
counsel is without merit. The Federal and State Constitutions guarantee a criminal
defendant the right to the effective assistance of counsel. US Const Amend VI; NY
Const, art I, § 6; People v. Baldi, 54 NY2d 137 (1981). "However, what
constitutes effective assistance is not and cannot be fixed with precision, but varies
according to the particular circumstances of each case." People v. Rivera, 71
NY2d 705, 708 (1988).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court promulgated a two-pronged test to evaluate a defendant's claim of ineffective
assistance of counsel under the Sixth Amendment. The Federal standard requires a
showing by defendant that 1) the representation fell below an objective standard of
reasonableness and 2) counsel's deficiency prejudiced the defendant. As to the showing
of prejudice, "[t]he defendant must show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694. As stated above, defendant has made no showing with
respect to his claim of ineffective assistance of counsel under the Federal standard.
Defendant's failure to make the required showing is fatal to his claim of ineffective
assistance of counsel.
The Court of Appeals has applied a flexible standard to determine whether a
defendant was deprived of the effective assistance of counsel under the New York
Constitution. People v. Benevento, 91 NY2d 708 (1998). "So long as 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, the constitutional requirement will been met." 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." Ford, 86 NY2d
397 overruled on other grounds by Peque, 22 NY3d 168.
This Court finds that defendant received a favorable plea bargain where he
was able to plead to a reduced charge, avoid jail time, and pay a $500.00 fine. There is
nothing in the record to suggest that defendant did not receive the effective assistance of
counsel.
Finally, even though a defendant will not be time-barred in bringing a 440
motion, "[t]he promptness or staleness of [a] complaint with respect to [the] propriety of
a guilty plea [is] a significant factor to be considered" when considering the merits a
post-judgment claim. People v. Nixon, 21 NY2d 338, 355 (1967). After failing to
timely take or perfect an appeal, defendant now moves to vacate his judgment of
conviction nineteen years after the fact. Defendant's failure to offer any explanation as to
why he waited for nearly two decades to move for vacatur undermines his credibility and
militates in favor of denial of the instant motion.
Accordingly, defendant's motion for an order vacating his judgment of
conviction is denied in its entirety.
This constitutes the decision of this Court.
Dated:June 26, 2015
Bronx, New York
_______________________________
Hon. Armando Montano
Footnotes
Footnote 1: In Boykin v.
Alabama, 395 U.S.238 (1969), the Supreme Court explained that the following
federal constitutional rights were involved in a waiver when a plea of guilty is entered in
a state criminal trial: 1) the privilege against self-incrimination; 2) the right to a trial by
jury; and 3) the right to confront one's accusers.