The defendant herein, Henry Jimenez, was found guilty by jury of his peers, of one (1) count of Criminal Possession of a Controlled Substance in the First Degree and two (2) counts of Criminal Possession of a Controlled Substance in the Third Degree. The conviction is connected to a quantity of cocaine found in a vehicle which had been operated by the defendant and a quantity of heroin found in the snow beside the defendant's vehicle where it had been stopped on February 10, 2010. This decision-order is a determination of a Criminal Procedure Law Article 440 motion made on behalf of the defendant. The motion was duly filed and served. The People have filed an answering affidavit opposing the motion. The Court has also had the benefit of a reply which the Court received on May 8, 2014 and an additional e-mail dated April 9, 2015 referencing the case, Millerton v. Lee, 2015 U.S. Dist. 38741 (S.D.NY March 26, 2015).

For the reasons that follow, the defendant's motion for an order vacating the judgment of conviction and his motion for a hearing on same are denied.

The defendant was within this County and traveling in his car on Thursday, February 10, [*2]2010 when he was stopped by police. A warrant was granted authorizing the police to search the defendant's car. The defendant was arrested for Criminal Possession of a Controlled Substance in the First Degree. The felony complaint by which the action was commenced was supported by an attached deposition made by the defendant. See attached Exhibit No.1, which is a copy of the felony complaint.

The defendant was arraigned in a local criminal court in this County. The local criminal court advised the defendant of his right to have an attorney and of his right to have an attorney assigned by the court if he did not have the funds. The defendant was given an application for an assigned attorney; and as is provided for in 22 NYCRR 200.26, the local criminal court assigned the Jefferson County Public Defender to represent the defendant. The local criminal court ordered that the defendant be held without bail until Tuesday, February 15, 2010 when a preliminary hearing was to have been held to determine whether there was sufficient evidence that the defendant had committed a felony thereby requiring that the defendant be held pending grand jury consideration. See attached Exhibit #2, which includes copies of the arraignment memorandum and order assigning the public defender.

The day following arraignment (February 11, 2010), the public defender informed the local criminal court that while it appeared that the defendant qualified for an assigned attorney, the public defender had a conflict interest because that office already represented the informant involved in the case. The public defender asked the local criminal court to assign an attorney from the county's assigned counsel list to represent the defendant. See Exhibit #3, which is a copy of the conflict letter the public defender sent to the local criminal court.

At some point between the date on which the defendant was arrested and February 16, 2010 Attorney Seth Buchman contacted the local criminal court and informed the local criminal court that he (Attorney Buchman) would be representing the defendant and that same day (February 16, 2010), the local criminal court ordered that the defendant be held for grand jury action. See attached Exhibit #4, which includes copies of the Local Court Criminal Disposition Report and divestiture memorandum, both of which are dated February 16, 2010 and both of which indicated that Attorney Buchman represented the defendant at that time.

On February 19, 2010, Attorney Buchman appeared in this Court and stated that the People and he had stipulated to bail in the amount of $75,000.00 cash or $150,000.00 bond; that the defendant's family was able to raise $45,000.00 in cash and would also be able to obtain a $50,000.00 bond; and asking that the Court set bail at something less than what the People had agreed upon. The Court set bail at $50,000.00 cash or $100,000.00 bond. See attached Exhibit # 5, which is a copy of the transcript of bail hearing.

The defendant was released from custody on February 22, 2010 when his father, Ramon Jimenez, posted cash bail in the amount of $50,000.00. See attached exhibit #6, which is the bail receipt given to Ramon Jimenez on February 22, 2010.

At some point prior to March 7, 2010, the People served notice of grand jury presentation on Attorney Buchman and he responded by waiving the defendant's right to speedy grand jury presentation (in writing). See attached Exhibit #7, which is a copy of Attorney Buchman's March 7, 2010 letter waiving statutory speedy trial.

The case was presented to the November 2010 term of the Jefferson County Grand Jury on December 16, 2010. See attached Exhibit #8, which is a copy of the cover page of the [*3]December 16, 2010 grand jury transcript.

The defendant was arraigned on the indictment on December 23, 2010. See attached Exhibit #9, which is a copy of the cover page of the December 23, 2010 arraignment transcript.

Attorney Buchman served demands and pre-trial motions; and a suppression hearing was held in this court on May 3 and 4, 2011. See attached Exhibit #10, which includes copies of the cover pages of the May 3 and 4, 2011 suppression hearing transcript.

An audibility hearing was held in this Court on October 14, 2011. See attached Exhibit #11, which is a copy of the cover page of the October 14, 2011 audibility hearing transcript.

Jury selection commenced on Monday, November 14, 2011 and the trial concluded on Friday of that week (which was November 18, 2011) with a trial verdict of guilty of all charges. The jury verdict included a finding of guilt for the A-1 felony of Criminal Possession of a Controlled Substance in the First Degree; and pursuant to Crim. Proc. Law. Section 530.40, the defendant's bail was revoked and he was committed to the custody of the Jefferson County Sheriff to await sentencing. See attached Exhibit #12, which are copies of the cover pages of the November 14, 15, 16, 17, and 18, 2011 trial transcript.

The defendant appeared in Court with Attorney Buchman on January 13, 2012 and was sentenced to a combined sentence of eleven (11) years plus post release supervision. See attached Exhibit #13, which is a copy of the cover page of the January 13, 2012 sentencing transcript.

On January 26, 2012, this Court received a fax from Attorney Patrick J. Brackley seeking an order from this Court assigning and releasing the cash bail that had been posted by Ramon Jimenez on February 22, 2010. See attached Exhibit #14, which includes copies of the fax cover page and letter the Court received from Attorney Patrick J. Brackley on January 26, 2012.

Attorney Buchman filed a timely notice of appeal in the Jefferson County Clerk's Office on January 27, 2012 and a copy of that notice of appeal was served on all necessary parties. See attached Exhibit #15, which is a copy of the notice of appeal filed and served by Attorney Buchman and bearing the county clerk's date and time stamp.

On April 26, 2012, this court received a letter from Attorney Patrick J. Brackley stating that he had been retained by the defendant to prosecute his appeal and asking the Court to provide a copy of the written report of the pre-sentence investigation prepared in connection with the defendant's sentencing on January 13, 2012. In that same letter, Attorney Brackley acknowledged knowing that the defendant's trial counsel [who had been Attorney Buchman] had filed a notice of appeal on January 27, 2012. See attached Exhibit #16, which includes copies of the envelope and letter the Court received from Attorney Patrick J. Brackley on April 26, 2012.

The Court answered Attorney Brackley's request that same day by sending a copy of the defendant's pre-sentence report to Attorney Brackley with a cover letter. See attached Exhibit #17, which is a copy of the cover letter the Court sent to Attorney Patrick J. Brackley on April 26, 2012.

On January 2, 2014, this Court received the defendant's notice of motion seeking relief pursuant to Article 440 of the Criminal Procedure Law from Attorney Brackley. The appeal of right, which was taken by the defendant's trial attorney (Buchman), was not perfected by his trial attorney or by the defendant's current attorney (Brackley), who was representing the defendant as early as April 2012.

The ground stated in the motion on which the defendant seeks coram nobis relief is that [*4]he did not receive the effective assistance of counsel. The defendant further argues that a hearing should be held to determine whether this court conducted its own pre-trial investigation of the defendant's mental capacity and character and whether as a result thereof, this Court should issue an order recusing itself from determining the motion.

The first looming issue to be determined in this decision is whether it was error on the part of the defendant's attorney or on the part of this Court not to have the defendant examined (as is provided for in Article 730 of the Criminal Procedure Law) to determine whether, as a result of mental disease or defect, the defendant lack the capacity to understand the proceeding against and/or to participate in his own defense. This is because the defendant's current attorney has alleged that the defendant's trial attorney was ineffective for going forward with trial without having the defendant so examined. Additionally, the defendant's current attorney has suggested that this Court erred, by conducting its own investigation into the defendant's mental capacity and not following the procedure set forth in Article 730.

The documentation contained in the Court's file, as well as the Court's observations of the defendant and other facts not contained in the record demonstrate that there was absolutely no reason to have the defendant examined (in accordance with Crim. Proc. L. Art. 730) or for the defendant's attorney to even move this Court for an order directing such an examination.

On or about February 18, 2010, the felony complaint by which this matter was commenced was divested to this Court. Included with the divestiture was a copy of a sworn statement by the defendant shortly after he was arrested, in which he (the defendant) admitted that he knew that he had possessed 300 grams of cocaine (which he had put inside his sneaker and in a shoe box to hide it in the trunk of his car). In that same statement the defendant admitted that it was his intent to sell the cocaine for money and he admitted that he knew it was wrong to do so. Finally, in that statement, the defendant acknowledged that he was taking criminal justice classes at a college in the Bronx. See attached Exhibit # 18, which is a copy of the divesting papers this Court received from the Town of Watertown Court, including the defendant's supporting deposition which was attached to the February 10, 2010 felony complaint. The defendant's statement indicates that the defendant understood that he was transporting cocaine, that doing so could result in criminal charges and that doing so was wrong.

Furthermore regarding February 18, 2010, on that date a member of the district attorney's office ^[FN1] and defense counsel appeared in this Court for a review of the bail that had been set by the lower court. That bail review was requested by the defendant's trial attorney and during that bail review proceeding, the assistant district attorney revealed that while the defendant was only arrested on a felony complaint accusing him of possessing cocaine, the police had also found nine hundred ninety (990) baggies of heroin in the defendant's possession. The defendant had not mentioned this in his written statement because he did not know the police had found it (the heroin).

On February 26, 2010, the Jefferson County Sheriff's Office advised the Court that the [*5]defendant had made bail and that the defendant was going to return to New York City.

On March 29, 2010, the defendant's attorney informed the Court that the defendant had relocated to New York City and that he (the defendant) was attending Monroe College in the Bronx. The defendant's attorney also advised the Court that the defendant had traveled from New York City to this Court (in Jefferson County) on that day even though he was not required to attend.

As such, within six (6) weeks of being arrested, Attorney Buchman and the Court had reason to believe that the defendant was able to enroll in and attend college classes and that the defendant most likely understood that what he was accused of doing was unlawful. The Court and the defendant's attorney also knew by that date that the defendant may have put the illegal substance in a sneaker box in the truck of the car in an attempt to hide it. See attached Exhibit #19, which is a redacted copy of the notes this Court took during a March 29, 2010 informal pre-indictment meeting between the defendant's attorney and the prosecutor to see if a disposition could be reached without resort to a grand jury indictment.

To sum up, the statements the defendant made after he was arrested, the fact that the defendant was attending college and the fact that he was able to operate a motor vehicle and drive to Jefferson County from New York City and back without assistance indicate that on the date the defendant was arrested and for the approximate six (6) week following the arrest, there was no reason to suspect that the defendant was suffering from a mental disease or defect which rendered him incapable of understanding what was taking place or incapable of assisting in his own defense.

On April 4, 2010, the defendant's trial attorney sent a letter to the prosecutor stating that the defendant had been diagnosed with having chronic pain, PTSD and an unspecified adjustment disorder and asking the prosecutor to take those facts into consideration in offering a more favorable disposition to the defendant. That same letter also stated that the defendant was attending college and was expected to complete the current semester. See attached Exhibit # 20, which is a copy of Defense Counsel's letter dated April 4, 2010 to the assistant district attorney.

Between April and August of 2010 the defendant's trial attorney and the prosecutor met on two (2) more occasions (in this Court's chambers) for the purpose of discussing a possible disposition of this case. Those two meetings did not lead to a disposition of the charges pending against the defendant.

On October 17, 2010, the defendant's trial attorney sent a letter to the prosecutor stating that he (Defense Counsel) expected there would be psychiatric testimony in the matter. However, in that same letter, Attorney Buchman acknowledged that there were no written reports outlining what the nature of that psychiatric testimony might be. See attached Exhibit # 21, which is a copy of Defense Counsel's letter dated October 17, 2010 to the assistant district attorney.

On December 16, 2010 the People presented the case to the grand jury and an indictment was returned by that same grand jury. Indictment 098-10 was reported out on December 20, 2010 and on December 23, 2010, the defendant and his trial attorney appeared before this Court for arraignment on the indictment. See attached Exhibit # 22, which is a copy of the cover page of the December 16, 2010 grand jury transcript.

The defendant appeared to be healthy on that day (arraignment on December 23, 2010). [*6]He was well groomed when he appeared. He made eye contact with the Court when he answered the Court's questions during arraignment. He never indicated that he did not understand what was being said, nor did it appear to the Court that he did not understand what was being said during arraignment. The defendant acknowledged to the Court that he was being represented by Attorney Seth Buchman and that Attorney Buchman was present in Court with him.See attached Exhibit # 23, which is a redacted copy of the Court's notes for December 23, 2010 and attached Exhibit # 24, which is the transcript of the December 23, 2010 arraignment , including pages 3, 4, and 5 of the transcript

During that arraignment (on December 23, 2010), the People served the defendant with their Crim. Proc L. Section 710.30 notice. Included with that notice was a sworn statement by the police officer (Deputy Vaughn) who initiated contact with the defendant on February 10, 2010 (the date of arrest). That sworn statement, which outlined the activities immediately following the stop of the defendant's vehicle on February 10, 2010, contained allegations which indicated that after the defendant's vehicle had been stopped, the defendant engaged in furtive conduct in an effort to thwart Deputy Vaughn's discovery of whatever it was he had in the sneaker box in the trunk of his car. Deputy Vaughn stated in his written statement that the defendant lifted the lid of the sneaker box only slightly, which indicated to Deputy Vaughn that the defendant had something suspicious in that sneaker box. Deputy Vaughn's written narrative also stated that the defendant attempted to distract Deputy Vaughn (after Vaughn stopped the defendant's car) by telling Deputy Vaughn that he (the defendant) was studying to be a police officer and showing his law book to Deputy Vaughn. Deputy Vaughn's statement also informed the reader that the defendant held a valid and current New York State firearms license when he was arrested on February 10, 2010. See attached Exhibit # 25, which is a copy of the Crim. Proc. L. Section 710.30 notice the People served on Defense Counsel on the day of arraignment which includes Deputy Vaughn's statement and a copy of the defendant's e-Justice criminal history, both of which refer to the defendant having had a firearms license. As such, aside from Attorney Buchman's allusion in his April 4, 2010 letter to the prosecutor (that the defendant suffered from post traumatic stress disorder and adjustment disorder), as of December 23, 2010 all indications (which by then included the defendant's appearance and behavior at arraignment; newly disclosed allegations about his attempt to avoid detection of the cocaine in the sneaker box on February 10, 2010; and the fact that he had a current firearms license when he was arrested on February 10, 2010) were that there was no reason to doubt the defendant's ability to understand the proceeding against him or his ability to assist in his own defense.

At a point subsequent to the defendant's arraignment on December 23, 2010, the defendant's trial attorney filed discovery demands and on January 27, 2011, the Court was provided with a courtesy copy of the People's response to the defendant's demands. Included in the People's response was their acknowledgment that they possessed a recording of conversations which might be used against the defendant at trial. Those recorded conversations became the subject of persistent efforts by the defendant's trial attorney to obtain a copy of that recording and on July 7, 2011, the Court ordered the prosecutor to provide a copy of the recorded conversations to the defendant's attorney.

The People complied with the Court's order a few days later and by the middle of July 2011, the defendant's attorney knew the contents of the recorded conversations. The first [*7]conversation was recorded on February 4, 2010, which was only a few days before the defendant was arrested. Without going into details too voluminous to discuss in this motion, the recorded conversations incriminated the defendant and demonstrated that the defendant understood that he was involved in an illegal drug trafficking operation. The recorded conversations are further evidence that the defendant did not lack the capacity, as a result of mental disease or defect, to understand and react to what had and was taking place.

The defendant's attorney and the prosecutor met in this Court's chambers again on February 16, 2011 to discuss scheduling matters. During that meeting, the defendant's trial attorney pointed out (and the Court noted) that despite the weather and road conditions and despite the fact that he was attending college in the Bronx, the defendant had faithfully traveled from New York City to this county for each informal meeting that was held between the prosecutor and Defense Counsel, even though the Court had not required the defendant to be present for any of those informal conferences.

It was during that same informal conference (on February 16, 2011) that the prosecutor informed the defendant's trial attorney and the Court that the People would agree to a disposition that included a plea to Criminal Possession of a Controlled Substance on the Second Degree and a determinate sentence of seven (7) years (followed by a period of post release supervision). The Court then interjected that the Court might consider a sentence of something less than that because of the sacrifices the defendant had made and the injuries he had suffered in his service to our country during the war in Iraq. See attached Exhibit # 26, which is a redacted copy of the notes this Court took during a February 16, 2011 informal meeting between the defendant's attorney and the prosecutor to see if a disposition could be reached without resort to trial.

In sum, more than one year after the defendant was arrested, he was still able to drive from New York City to Jefferson County and back; he was still able to make his way to Court and he was still demonstrating that he was interested in the proceeding and concerned about the charges he was facing. As such, at that point (February 16, 2011), there was still no substantiated reason to suspect that, as a result of mental disease or defect, the defendant lacked the capacity to understand the proceedings against him or the capacity to assist in his own defense.

At this juncture it is important to note that even though the Court had informed the prosecutor and the defendant's trial attorney that the Court would agree to less than the seven (7) years offered by the prosecutor (because of the sacrifices the defendant had made during his military service), the Court had made that promise contingent upon the defendant's attorney substantiating the alleged war related physical and mental conditions with documentation and on April 25, 2011, the defendant's attorney delivered to the Court (and to the prosecutor), a stack of photocopied medical records.^[FN2] The stack of photocopied records was approximately 56 centimeters in height and pertained solely to defendant's treatment and/or diagnosis. The records Defense Counsel delivered covered the period May 6, 2005 until January 28, 2010.^[FN3] The Court [*8]examined the records for anything that discussed the defendant's mental condition. There was nothing contained in those records which suggested that the defendant lacked the capacity to understand the proceeding against him or the capacity to assist in his own defense. The Court notes that one record dated May 9, 2008 stated that the defendant had been screened for traumatic brain injury and the results were negative. See attached Exhibit # 27, which is a copy of the defendant's medical; record for May 9, 2008. Because of the sheer volume, the records Defense Counsel provided to the Court on April 25, 2011 are not attached to this document.

While the indictment was still pending, the defendant's attorney had filed a timely omnibus motion which sought suppression of the evidence the police obtained after the defendant's vehicle had been stopped on Interstate Route 81 on February 10, 2010; and on May 3, 2011, the defendant and his trial attorney appeared in this Court for the start of the suppression hearing (which had been granted to him based on the omnibus motion his trial attorney had filed). The defendant was well groomed during that appearance. He made eye contact and gave appropriate responses to the two brief questions the Court asked of him; and the transcript of that day indicates that the defendant also asked his attorney (during the beginning of the suppression hearing) about the possibility of raising a speedy trial argument.

The Rosario materials which had been provided to the defendant's attorney and to the Court on May 3, 2011 disclosed that the heroin which the defendant was not originally accused of possessing but for which he was eventually indicted, was found in the snow beside where the defendant's car had been stopped on Interstate Route 81 on February 10, 2010. That same discovery revealed that the defendant had thrown the heroin out his car window when the opportunity presented itself (so that he would not get caught with it) and that the police only discovered the heroin in the snow because the defendant told his wife (during his telephone call after arrest) that he had thrown the heroin out the car window; his wife told the confidential informant and the confidential informant immediately notified the police that they would find the heroin in the snow beside where the defendant's car had been stopped.^[FN4] See Exhibit # 28, attached hereto, which is a copy of a photograph of a text message contained on the confidential informant's cell telephone, which informed the police that the heroin had been thrown out the window. The fact that the defendant tried to evade detection of the heroin when his car was stopped on Interstate Route 81 on February 10, 2011 is further evidence of the fact that the [*9]defendant understood what was taking place, that what he had been doing was wrong and that there was no reason to have the defendant examined to determine whether, as a result of mental disease or defect, he did not have the capacity to understand the proceeding against him or to participate in his own defense.

The suppression hearing which had been commenced on May 3, 2011 was not completed on that day and on the following day ( May 4, 2011) the defendant appeared before the Court once again (for the completion of the suppression hearing). As had been the case on previous occasions, the defendant was also well groomed on that day. He appeared to be interested in what was taking place on the second day of the suppression hearing and there was nothing about the his conduct or mannerisms which suggested that the defendant did not understand what was taking place. Finally, the fact that the defendant inquired about a speedy trial when he was in Court on May 3, 2011 indicates that the defendant was able to participate or assist in his defense on that day when the suppression hearing was being held. See attached Exhibit # 29, which is page 4 of the May 3, 2011 proceeding where Defense Counsel states that the defendant has inquired about speedy trial and attached Exhibit # 30, which indicates the defendant was paying attention to the proceedings and responding appropriately to questions.

As time went on, the defendant's trial attorney continued to advocate on behalf of his client (even after the suppression hearing had been completed). On May 25, 2011, the defendant's attorney provided the Court with a copy of the June 23, 2009 Rating Decision made by the Department of Veterans Affairs in connection with the defendant's military service related medical conditions. That report stated that the defendant was examined on or about January 28, 2009, February 4, 2009 and May 5, 2009 and that during those examinations, the defendant's defendant's appearance, attitude and behaviors were within normal limits; the defendant's grooming and hygiene was good; the defendant answered all questions appropriately and made good eye contact; the defendant's sensorium was intact (meaning his sensory system was working). The report also stated that while somewhat lacking in spontaneity and under-productive, the defendant's speech was otherwise relevant and coherent; the defendant's thought processes were rational and goal directed with no evidence of hallucinations, delusions, obsessions, compulsions, phobias, ritualistic behaviors, mania or psychosis; and the defendant was oriented to time, person and place. The report also stated that the defendant did appear to struggle with short term memory and concentration tasks; that his mood was depressed and anxious and his affect constricted but otherwise appropriate; and that the defendant had been diagnosed with post traumatic stress disorder that was moderate to severe in nature.

The Rating Decision the Court received on May 25, 2011 also stated that while there were no objective findings associated with traumatic brain disorder, the reasonable doubt as to the existence of a traumatic brain injury based on the defendant's own subjective complaints of headaches, dizziness, tinnitus and light sensitivity would be resolved in the defendant's favor by assigning a ten percent (10%) level of severity for post concussion residuals. The Rating Decision also stated that a level of severity of zero (0) was being assigned memory, attention, concentration and executive functions facet of the examinations. See attached Exhibit # 31, which is a copy of the June 23, 2009 Rating Decision Defense Counsel provided to the Court on May 25, 2011.

That Rating Decision, dated June 23, 2009, confirmed that eight (8) months prior to being [*10]arrested, Department of Veterans Affairs had determined that while the defendant may have been suffering from post traumatic stress disorder, the defendant's thought processes were rational, his speech relevant and coherent and that the answers he gave to all of the questions asked of him were appropriate. As such, the June 23, 2009 Rating Decision confirms that approximately one year prior to being arrested, there was no reason to question the defendant's mental capacity. Additionally, the Rating Decision indicated that the post traumatic stress disorder the defendant may have been suffering from did not impact his abilities as they pertained to his capacity to understand the proceedings against him or to assist in his defense.

At a point prior to June 1, 2011 but prior to trial, the defendant's attorney obtained the services of Dr. Stephen Fitzgerald, Ph.D. to assist him (trial counsel) in exploring a potential defense based on mental disease or defect. According to Dr. Fitzgerald, at that time his practice (Fitzgerald's) had included ten (10) years of experience with veterans who had suffered trauma during the war. At that time, Dr. Fitzgerald was also employed by a medical group whose responsibility was to diagnose post traumatic stress disorder and traumatic brain injury in returning soldiers and to submit the results of those diagnoses to the Department of Veterans Affairs. Based on Dr. Fitzgerald's experiences and current employment, there was no reason for the Court or for the defendant's attorney to doubt Dr. Fitzgerald's qualifications as an expert on post traumatic stress disorder and traumatic brain injury. See attached Exhibit # 32, which is a copy of a sworn affidavit by Dr. Fitzgerald, which Defense counsel submitted to this Court on June 1, 2011.

By June 13, 2011, the defendant's trial attorney had received Dr. Fitzgerald's written report of the psychological evaluation he conducted of the defendant. See attached Exhibit #33 which is the top of the second page of the report. Exhibit # 33 shows that Dr. Fitzgerald faxed his report to Attorney Buchman on June 13, 2011. One of Attorney Buchman's local telephone numbers was and still is 649-4195. That written report stated that Dr. Fitzgerald had completed his examination of the defendant between June 7, 2011 and June 10, 2011. There is nothing in the Dr. Fitzgerald's report, which was issued two days later, that called into question the defendant's capacity to understand the proceedings against him or to assist in his defense. In fact, to the contrary, Dr Fitzgerald reported that the defendant's verbalization was entirely intelligent; that he (Dr. Fitzgerald) did not note any unusual logic on the part of the defendant; that the defendant presents his thoughts in an understandable and relevant fashion; the defendant is able to follow a simple three stage request; the defendant shows that he is oriented to time, place and person, the defendant's sensorium appears to be clear; and that the defendant's recent and remote memory functions are grossly intact.^[FN5] See Exhibit # 34, which is a copy of the report Dr. Fitzgerald provided to Defense Counsel on June 13, 2011.

Based on the foregoing, which includes the written statement the defendant made when [*11]he was arrested, Deputy Vaughn's written statement about the defendant's evasive behavior, the defendant's appearances in court and the interest he had shown in the pre-trial proceedings thus far, the rating report issued by the Department of Veterans Affairs and now the report of his own mental health expert, as of June 13, 2011, there was nothing about the defendant's appearance, his speech and the content of it, the defendant's reasoning abilities or anything else which indicated that the defendant should be examined to determine whether, as a result of mental disease or defect, he lacked the capacity to understand the proceedings or the capacity to assist in his defense. At that point, all indications were that the defendant was functioning satisfactorily.

Inasmuch as the defendant's trial attorney had notified the Court and the prosecutor that he was anticipating a defense that would include psychiatric evidence, a pre-trial conference was scheduled for July 8, 2011. The purpose of that conference was to discuss when the defendant would be available for examination by the People's expert.

The defendant appeared in Court for that pre-trial conference. As was the case with previous appearances, the defendant was well groomed on that day (July 8, 2011). He provided appropriate answers to the questions asked of him and he made eye contact when answering those questions. The defendant had once again traveled to Court from New York City for that July 8, 2011 pre-trial conference. On that day (July 8, 2011), the defendant exhibited absolutely no behavior or symptoms which suggested that the defendant should be examined to determine whether, as a result of mental disease or defect, he lacked the capacity to understand the proceeding or to assist in his defense. See Exhibit # 35, which is pages 1, 2, and 3 of the transcript of the July 8, 2011 preceding in this court, indicating that the defendant was responding appropriately to questions during that appearance.

The defendant appeared in court for another pre-trial conference on September 28, 2011. The defendant arrived on time for that conference which was to discuss trial logistics. Having once again traveled from New York City, the defendant's dress and grooming was appropriate. He participated in the conference, even at one point informing the Court that he did not understand the particular issue that was being discussed (which was whether the defendant needed to be present for an upcoming audibility hearing) and that he needed to have that issue explained to him. The conference was paused so that the defendant's attorney could explain the issue to the defendant in private. After the conference resumed, the defendant informed the Court that he did wish to waive his right to attend the audibility hearing. The defendant's attorney was present when the defendant did so. See Exhibit # 36, which is pages 1, 4, 14, 15 and 16 of the transcript of the September 28, 2011 preceding in this court, indicating that the defendant was responding appropriately, paying attention during that appearance and that he was cognizant enough to state when he did not understand what was being asked or discussed.

In sum, with trial less then seven (7) weeks away, the defendant remained interested in the proceedings. He was still participating in the proceedings. He had not engaged in any kind of behavior or speech or exhibited any other symptoms by that time which indicated that he should be examined to determine whether he lacked the capacity, as a result of mental disease or defect, to understand the proceeding or to assist with his defense.

During the pendency of the indictment there was a point (after the defendant's attorney had notified the prosecutor and the Court that he anticipated he would be presenting psychiatric evidence), that the People moved for an order directing that the defendant submit to an [*12]examination by their mental health expert (as is provided for in section 250.10 of the Criminal Procedure Law. That request (by the People) was granted. The defendant was examined by the People's expert, Stuart M. Kirschner, Ph.D. and on November 7, 2011, which was one week prior to the commencement of the trial, the defendant's trial attorney and the court were provided with a copy of the written report (dated the same day) Dr. Kirschner made after his examination of the defendant. That report stated that the defendant was examined on September 22, 2011. Dr. Kirschner's report stated that the defendant's trial attorney was present during Dr. Kirschner's examination of the defendant. According to that report, Dr. Kirschner concluded that while the defendant did suffer from post traumatic stress disorder as a result of his experiences in Iraq, he (the defendant) also appeared to be of average intelligence, insight and judgment and that there was no evidence to support that the defendant was impaired in either the form or content of his thinking. See attached Exhibit # 37, which is a copy of the examination report prepared by the People's expert witness. As such, less than two (2) months prior to trial, neither the Court nor the defendant's trial attorney had any reason to suspect that, as a result of mental disease or defect, the defendant did not have the capacity to understand the proceeding against him or to participate in his defense.

The trial of the indictment was scheduled to begin on the morning of November 14, 2011 with commencement of jury selection. At 8:35 AM on that day (November 14, 2011), the prosecutor and the defendant's trial attorney met in the Court's chambers in anticipation of the start of jury selection that morning. At that time, the People provided Attorney Buchman and the Court with a thick packet of documents which the People referred to as Rosario materials. Included in that packet was the cover page of the defendant's February 5, 2009 application for a firearms license. See attached Exhibit # 39, which is a copy of the cover page of the firearms license application the defendant filed in April 2009.

As is customary, the application for the New York State firearms license asked if the applicant had ever undergone treatment for alcoholism or drug abuse, ever suffered any mental illness or been confined to an institution for the treatment of a mental illness and if the applicant had any physical condition which could interfere with the safe and proper use of a handgun. The defendant answered "no" to each of those questions. Additionally, as is customary, the defendant's application included the names and addresses of four (4) different individuals not related to the defendant, each of whom would have been interviewed by a Jefferson County Sheriff's Detective before the Sheriff would make a recommendation to this Court as to whether the applicant should or should not be issued a firearms license.

The defendant was granted a firearms license by this Court. His application for a firearms license confirms that one year prior to the defendant being stopped on Interstate Route 81 and arrested, the defendant had sworn under oath that he was not suffering from a mental illness which rendered him unable to responsibly possess a conceal able weapon. While that sworn statement was made a year before the defendant was arrested, that application and the fact that this Court had granted the defendant a firearms license indicates that at least as of February, 2010, the defendant was able to successfully complete the steps required for obtaining a New York State firearms license. That application and the fact that the license was granted by this Court (of which the Court was reminded on the morning before jury selection) is further evidence that the defendant was able to understand what was taking place and able to follow a complex [*13]licensing process in February of 2009 and for the six months prior to his arrest in February of 2010, during which he was allegedly transporting drugs into this community from New York City.

Jury selection did commence on November 14, 2011. A jury was picked that day. Opening statements and the presentation of evidence followed and on November 18, 2011, the jury returned a verdict of guilty on all three counts contained in the indictment. Inasmuch as the defendant was convicted of a class A-I felony, his release on bail was revoked and sentencing was scheduled to take place in January of 2012.

On January 12, 2012, the Court received the Jefferson County Probation Department's written report of the department's pre-sentence investigation of the defendant. That report indicated that the defendant told the investigating probation officer that since being arrested on February 10, 2010, he (the defendant) had received his associates degree from Monroe College. See Exhibit # 40, which is a page from the pre-sentence report prepared in connection with this case.

The fact that the defendant was able to continue his education and complete the requirements for an associate degree after he was arrested demonstrates that the defendant's ability to comprehend was not impaired to the extent that he was unable to understand the proceeding or to participate in his own defense.

Paragraph c of subdivision 4 of section 440.30 permits the Court to deny a post judgment motion for an order vacating the judgment of conviction without conducting a hearing if an allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof.

A fact essential to that part of the defendant's motion which seeks an order vacating the judgment of conviction because the Court or his trial attorney failed to have the defendant examined pursuant to Article 730 (of the Criminal Procedure Law) is that the defendant was (or appeared to be) incapable of understanding the proceeding or incapable of assisting in his defense because of mental disease or defect. Having considered the unquestionable documentary proof in this case, the Court finds that the post conviction assertions that the defendant lacked the ability to understand the proceeding or to assist in his defense have been refuted by such proof. Therefore, in accordance with Crim. Proc. L. §440.30, subd. 4, para. c, that part of the defendant's Crim. Proc. L. Article 440 motion which seeks an order vacating the judgment of conviction because the defendant's attorney was ineffective for having failed to move this Court to have the defendant examined as is provided for in Crim. Proc. L. Article 730 and/or because this Court erred by failing to have the defendant examined as is prescribed in Article 730 (of the Criminal Procedure Law) is denied.

Denial of the defendant's motion (for failure to have the defendant examined pursuant to the provisions of Article 730) is also appropriate under paragraph d of subdivision 4 of section 440.30 of the Criminal Procedure Law. Paragraph d (of Crim. Proc. L. 440.30, subd. 4) permits the Court to also deny a post judgment motion for an order vacating the judgment of conviction without conducting a hearing if an allegation of fact essential to support the motion is contradicted by a court record or other official documentation and under these and all other circumstances attending the case, there is no reasonable possibility that such allegation is true.

As stated previously, a fact essential to that part of the defendant's motion which seeks an [*14]order vacating the judgment of conviction because the defendant, in fact, lacked the capacity, because of mental disease or defect, to understand the proceeding against him and to assist in his own defense is that the defendant was indeed incapable (between the date of arrest until the completion of the trial) of understanding the proceedings against him or assisting in his defense.

The record of the defendant's firearms license, including the character references and the report of the investigating detective and the fact that the defendant was determined to be suitable for issuance of a firearms license and the June 23, 2009 Rating Decision issued by the Department of Veterans Affairs (of the Untied States of America), support the presumption that during the first half of 2009, which was during the same time frame that the defendant was discharged from the Army for medical reasons, that the defendant did not appear to be suffering from mental disease or defect which rendered him incapable of understanding or participating in a criminal proceeding.

The defendant's ability to understand the proceeding against him on the date he was arrested is also demonstrated by the contents of the deposition made by him on the date of arrest. The defendant's ability to understand the proceeding against him continually between the date of arrest and the last day of trial is further supported by the fact that he presented himself in Court on March 29, 2010; December 23, 2010; February 16, 2011; May 3, 2011; May 4, 2011; July 8, 2011; September 28; 2011 and for commencement of trial on November 14, 2011 and his (the defendant's) participation in the proceedings on December 23, 2010; May 3, 2010; July 8, 2010 and September 28, 2010 and November 14, 2010. See attached Exhibit # 41, which is pages 1, 4, 8, 9, 17 and 18 of the transcript of the first day of trial on November 14, 2011, which demonstrates that the defendant realized that he should spell his friend's last name.

Having considered the content of the Court's records for March 29, 2010, December 23, 2010, February 16, 2011, May 3, 2011, May 4, 2011, July 8, 2011, September 28, 2011, and November 14, 2011 and the following official documents:

1. Record of Firearms License C-9272 issued to Henry Jimenez on June 30, 2009;

2. Felony Complaint accusing the defendant of Criminal Possession of a Controlled Substance in the First Degree and attached Supporting Deposition by Henry Jimenez dated February 10, 2010;

3. June 23, 2009 Rating Decision by the Department of Veterans Affairs; and

4. January 11, 2012 written report of the pre-sentence investigation completed in this matter, the Court finds that those records and documents contradict the allegation of essential fact (that the defendant lacked the ability to understand the proceeding or to assist in his defense).

Furthermore, the Court finds that under the circumstances attending this case, including but not limited to

1. the extensive medical records submitted to this court by the defendant's attorney, none of which contain an unequivocal finding that the defendant was suffering from a traumatic brain injury and some of which that suggested that the only indicia of post traumatic stress disorder were some subjective symptoms reported by the defendant;

2. the defendant's ability to drive himself, on multiple occasions, from his residence in New York City to this Court, which is several hours away;

3. the defendant's physical appearance when he attended Court;

4. the defendant's demeanor, as observed by this Court and his answers to questions asked of him when he did appear in this Court;

5. the defendant's furtive conduct in throwing the heroin he possessed out the car window when his vehicle was stopped on February 10, 2010;

6. the defendant's ability to attend college and complete the requirements for an associates degree after he was discharged from the Army and to also attend college while the matter was pending (as was testified to by the defendant's wife during his case on November 17, 2011at page 1015); and

7. the defendant's mental condition as described in Dr. Fitzgerald's examination report, that even in the face of the facts that some of the symptoms the defendant has reported he suffers from may demonstrate that he suffers from post traumatic stress disorder and likely demonstrate that he suffers from depression and residual post concussion headaches, dizziness, insomnia and light sensitivity, there is no reasonable possibility that the defendant, as a result of mental disease or defect, lacked the capability to understand the proceeding against him or to assist in his defense.

Based on the foregoing findings, 1) that the Court record and other official documents contradict the essential fact that the defendant lacked the capability to understand the proceeding against him or to assist in his defense and 2) that under these and all the other circumstances attending the case, there is no reasonable possibility that the defendant lacked the capability to understand the proceeding against him or to assist in his defense, the Court has determined that the defendant's trial attorney was not ineffective for failing to request that the defendant be examined as is provided for in Crim. Proc. L. Art. 730 and that this Court did not err for failing to have the defendant so examined.

Therefore, in accordance with Crim. Proc. L. §440.30, subd. 4, para. d, that part of the defendant's Crim. Proc. L. Article 440 motion which seeks an order vacating the judgment of conviction because the defendant's attorney was ineffective for having failed to move this Court to have the defendant examined or because this Court erred in failing to have the defendant examined as is provided for in Crim. Proc. L. Article 730 is denied.

The second major issue to be determined is the allegation by the defendant and his current attorney, that the defendant's trial attorney was ineffective because he failed to properly advise the defendant of the wisdom of accepting or rejecting the People's offers to accept a plea to a lesser offense and a sentence that was significantly less than the sentence the defendant eventually received. While the Court agrees that the defendant's trial attorney would have been ineffective if he had not advised the defendant that it was his (Defense Counsel's) opinion that the defendant should have accepted the offer, as will be shown, this allegation does not support the assertion that the defendant's former attorney did not do his duty.

Paragraph d of subdivision 4 of section 440.30 of the Criminal Procedure Law permits the Court to deny a motion to vacate the judgment without conducting a hearing if an allegation of fact necessary to support the request is made solely by the defendant and unsupported by any other documentation and under the circumstances of the case, there is no reasonable possibility that the allegation is true. People v. Walker, 200 AD2d 367; 608 N.Y.S,.2d 69) 1st Dept. 1994) Lv. to App. Den. 83 NY2d 877; 613 N.Y.S.2d 138 (1994).

Beginning with the proof offered to support the essential allegation of fact (that the [*15]defendant's trial attorney did not properly advise the defendant that he should accept the People's offer), all that has been offered to support this contention is the defendant's own self serving statement which comes in the form of a sworn affidavit. Not only is this statement self serving, there are serious credibility issues associated with that statement. For sake of brevity, the Court will address one such credibility issue.

The defendant has begun his written statement by asserting that during his first meeting with his trial attorney (Buchman) the defendant's attorney promised the defendant that he (Buchman) could get the defendant sentenced to a drug program. While this Court does have an active drug treatment court program and while other drug programs (such as the Willard program) are available to defendant's convicted of drug related crimes in this Court, , that assertion is ridiculous.

If Attorney Buchman, who has had clients who were sentenced to drug programs, was contemplating a drug program, he would had the defendant be evaluated for substance abuse.

Attorney Buchman was an experienced defense attorney when the defendant was arrested and his experiences at that time did include defending against felony drug charges, including cases in which his clients were accused of criminal possession of a controlled substance in the first and second degrees.^[FN6] His experiences at that time also included successfully negotiating dispositions which included sentences of mandated Willard,^[FN7] sentences to this Court's drug treatment court program,^[FN8] sentences to a local alternative to incarceration called The Bridge Program,^[FN9] and sentences to probation supervision.^[FN10]

As a result of Attorney Buchman's prior successful experiences in securing sentences to programs tailored to those defendant with addiction problems, Attorney Buchman knew long before the defendant in this case was arrested, that this Court (and the District Attorney, who could veto admission to many of the programs available) would not approve of a sentence to a drug program unless the Court had verification that the defendant was an addict. Attorney Buchman also knew, prior to when the defendant was arrested and while the charges were pending against the defendant, that the verification the Court (and often the District Attorney) required was either a criminal history that included offenses involving the sale of drugs to support an addiction and/or larcenies committed to obtain funds to purchase drugs or an evaluation by a qualified substance abuse evaluator which indicated the defendant was an addict. Inasmuch as the defendant in this case did not have a criminal history that included drug related offenses, Attorney Buchman would have known that he would have to have the defendant evaluated by a qualified substance abuse evaluator in order to get the defendant accepted into a [*16]drug program. It appears that a substance abuse evaluation was never completed or even requested in this case.

It is ludicrous to assert that Attorney Buchman, knowing that a substance abuse evaluation was necessary in order to qualify a defendant for a drug program would have promised the defendant a sentence to a drug program and then not have obtained an evaluation.

Finally, the defendant has not provided anything which would substantiate that Attorney Buchman had promised the defendant a sentence to a drug program. The defendant has stated that the meeting during which Attorney Buchman promised him a drug program took place prior to Attorney Buchman being retained. Even if the defendant was mistaken about who owned the office where he met with Attorney Buchman and even if he was mistaken about wether the meeting was before or after Attorney Buchman was retained, it is clear that the defendant is averring (in paragraph 3 of his November 30, 2013 affidavit) that the meeting during which the drug program sentence was promised was his first meeting with Attorney Buchman outside of the jail and that it (the meeting) was very soon after the defendant was released from custody on February 22, 2010 and relocated to New York City. At that point Attorney Buchman would have hardly known the defendant. At that time, he (Attorney Buchman) would certainly not have known enough about the defendant to promise a drug program unless of course, the defendant had provided Attorney Buchman with detailed information about his struggle with addiction.

The defendant has not indicated in his self serving affidavit, that during that meeting he told Attorney Buchman about his struggle with addiction and in response to him telling Attorney Buchman about it, Attorney Buchman promised him a sentence to a drug program. In fact, the defendant has not alleged any facts which tend to demonstrate that he had a substance abuse problem or that Attorney Buchman had any reason to believe or even suspect that the defendant was a drug addict. In light of the absence of any indicia of substance abuse, it is just not credible to suggest that Attorney Buchman, who was familiar with the drug programs that were available in 2010, would have promised a defendant, who he hardly had time to become acquainted with, that he would get that defendant sentenced to a drug program.

Finally, it is of note that the defendant did not tell the police (when he was arrested) that he had a substance abuse problem. He did not include in his February 10, 2010 written statement that he was buying and selling drugs to support his own addiction. There was no mention of the defendant being an addict prior to the indictment being filed. There is nothing about drug addiction contained in the written report of the pre-sentence investigation report. There is nothing in the defendant's current moving papers about the defendant having a substance abuse problem that might render him eligible for a sentence to a drug program. Finally, there was nothing about the defendant's physical appearance in 2010 and 2011, which might have lead this Court to suspect that he was abusing drugs.

In sum, paragraph 3 of the defendant's self serving November 30, 2013 affidavit casts serious doubt on the defendant's veracity and as such casts doubt on the other allegation contained in the affidavit.^[FN11]

Turning to whether there is any reasonable possibility that the allegation that the defendant's trial attorney did not adequately advise the defendant of the wisdom of accepting and rejecting the People's plea offers, consider first that from the very beginning of this case and continuing right through to the morning of jury selection on November 14, 2011, the defendant's former attorney attempted to and successfully did negotiate favorable plea offers by emphasizing the defendant's sacrifices as a war veteran.

Second, the documentation associated with this case and the transcripts of May 3, 2011 and November 14, 2011 demonstrate the lengths that were made in an effort to insure that the defendant was aware of the evidence against him and what the People had to prove, the sentence he was facing if he was convicted at trial, the Court's sentencing philosophy and the offers that had been made by the People and approved by the Court.

Beginning with May 3, 2011, a suppression hearing was scheduled to begin at 11:30 AM that day. The defendant's case was the only case the defendant's attorney was scheduled to appear for on that day. As such, he (Counsel) had time prior to 11:30 AM to discuss the case with the defendant. See Exhibit # 42, which is a copy of the Court's calendar for May 3, 2011 showing that the defendant's case was Attorney Buchman's only case that day. As will be shown, Counsel also had from approximately 11:35 AM until 1:00 PM to engage in further discussion with his client on that day.

At 11:30 AM, the prosecutor and Attorney Buchman had a brief meeting in the Court's chambers. During that brief meeting, Attorney Buchman negotiated the offer of a determinate sentence of five (5) years and five (5) years post release supervision in exchange for a plea to Criminal Possession of a Controlled Substance in the Second Degree (in satisfaction of the indictment). The hearing was immediately adjourned to 1:00 PM so that Attorney Buchman could discuss that negotiated offer with his client. At 1:00 PM Attorney Buchman and the prosecutor returned to chambers where Attorney Buchman asked for additional time for his client to consider the new offer. The Court informed Attorney Buchman that this was decision day, the hearing was scheduled and had to go forward and that the Court's approval of that offer would be withdrawn once the identity if the confidential informant had been revealed. See Exhibit # 43, which is a redacted copy of this Court's handwritten note of the 11:30 AM meeting between Attorney Buchman and the prosecutor. The Court notes that Exhibit # 43 shows that the defendant and Attorney Buchman had at least eighty-five (85) minutes prior to the commencement of the next conference at 1:00 PM, in which to meet with the defendant and discuss the offer.

The transcript of that day (May 3, 2011) indicates that the hearing was not commenced (in open court) until 1:15 PM that day (see Exhibit # 44,which is a copy of the page 4 of the May 3, 2011 hearing transcript). However, while the transcript indicates that the suppression hearing [*17]was commenced at 1:15 PM, the fact is that even at that point discussions continued before the suppression hearing was actually commenced in open court.

It has been this Court's practice to insure, before a favorable plea offer is withdrawn or finally rejected by a defendant that 1) the defendant has an understanding of the evidence the People may present against him or her at trial 2) the offer has been communicated to a defendant, 3) the defendant has been told about this Court's philosophy regarding sentencing, and 4) the defendant is informed of the possible sentence he or she may receive if convicted of the charges in the indictment.

Consistent with this Court's practice, (and even though the offer had been communicated to the defendant's attorney before lunch and even though the defendant and his attorney had been given a sufficient amount of time to discuss the offer), before any evidence was received on May 3, 2011 which would reveal the identity of the confidential informant and result in the five (5) year offer being withdrawn, this Court required the prosecutor to summarize for the defendant, the evidence the People had against the defendant.

The prosecutor then informed the defendant that the police knew that a male was selling drugs out of the defendant's location (Starwood Apartments), that the police were able to ascertain, from a confidential informant, the identity of the male who was selling drugs out of that housing complex, that the confidential informant was fitted with a listening device, that by listening and observing, the police were able to corroborate what the confidential informant had told them about and to confirm that the confidential informant did have a connection to the male who was selling drugs out of the housing complex, that the confidential informant subsequently told the police that the defendant would be traveling on a particular day from New York City to Watertown, the approximate time the male would be arriving in Watertown and that he would be transporting specific large quantities of heroin and cocaine. The prosecutor also informed the defendant that through surveillance and motor vehicle records, the police were able to narrow the vehicle the individual would be driving to two potential vehicles and that through surveillance and motor vehicle records, they were able to determine that he would be arriving in Watertown in a Mercedes registered to his wife. The prosecutor told the defendant they had evidence that the vehicle was stopped on Interstate Route 81, a police dog alerted during a sniff of the outside of the vehicle, the vehicle was searched and A-1 felony weight cocaine was found in the vehicle and 900 some bags of heroin were found lying in the road next to the vehicle. The prosecutor told the defendant that he was taken to the police station where he was informed of his Miranda rights and where he gave a written statement confessing to possessing and bringing the heroin into Jefferson County for the purpose of selling it.

This was followed by the Court directing the prosecutor to state what the terms of the offer were, which she did do.

The Court then explained to the defendant that the People would withdraw that offer once the identity of the confidential informant was disclosed during the imminent suppression earing.

This was followed by the Court explaining to the defendant that when fashioning a sentence, this Court gave consideration to those defendants who came forward and accepted responsibility for their criminal conduct. Finally, the Court informed the defendant, that were he to be convicted by a jury, the minimum sentence he could receive was eight (8) years, which was three years more than was being offered that day.

The Court took a break in the proceeding so that the defendant and Attorney Buchman could discuss the offer once again before the suppression hearing opened.

Approximately five minutes later, a court officer advised the Court that Attorney Buchman and the defendant did not need any more time to talk. The proceeding was reconvened (in the courtroom), with both the defendant and Attorney Buchman being present. The Court asked Attorney Buchman (in the presence of the defendant), if he had had a chance to discuss those issues with his client. Attorney Buchman responded (in his client's presence) that the defendant wished to go forward with the hearing.

The prosecutor withdrew the determinate five years she had offered. The Court withdrew its consent to that proposed disposition and the suppression hearing was opened.

The foregoing is an accurate description of the events that took place in this Court prior to the opening of the suppression hearing on May 3, 2011. The foregoing demonstrates that, contrary to the assertion by the defendant's current attorney, that the defendant and his attorney were only given five minutes to discuss the offer that day, they were given nearly two hours. The foregoing also demonstrates that it is very unlikely that the defendant's attorney had not explained to the defendant (in the nearly two (2) hours prior to the actual commencement of the May 3, 2011 suppression hearing, the wisdom of accepting that offer. See Exhibit # 45 attached hereto, which is the transcript of what took place before the suppression hearing was actually commenced on May 3, 2011.

In sum, Attorney Buchman had cajoled a very favorable offer from the People prior to 11:30 AM on May 3, 2011. The Court approved of that negotiated disposition. The defendant and Attorney Buchman were given between 11:35 AM and 1:00 PM to discuss the offer. Upon learning that the defendant had not accepted the offer, the Court took its own steps (in the presence of counsel) to insure that the defendant understood what the People case against him was about, what the current offer was, what he was facing for a sentence if convicted by a jury and that the offer would be withdrawn that day, once the hearing which would divulge the identity of the confidential informant went forward. The defendant was given an additional opportunity to discuss the offer with Attorney Buchman. After five (5) minutes, Attorney Buchman informed the court officer that he and his client were through talking. All of the parties returned to the courtroom where the defendant's attorney informed the Court and the prosecutor (on the record) that the defendant was unwilling to accept that offer.

Turning to the conferences and offer that took place before the commencement of jury selection on November 14, 2011, the transcript of that proceeding most tellingly demonstrates that by that time, there was no reasonable possibility that the defendant's trial attorney had not fully advised the defendant of the wisdom of accepting or rejecting the People most recent offer of a plea to Criminal Possession of a Controlled Substance in the Second Degree with a determinate sentence of six and one half years (6½, followed by post release supervision).

At 8:35 AM on the morning of November 14, 2011, which was the day that jury selection was commenced, the prosecutor and the defendant's trial attorney met in the Court's chambers to state whether or not there were any remaining issues to be worked out before the trial could be commenced. During that informal conference, the Court asked the defendant's attorney if he (Defense Counsel) had received and read Dr. Kirschner's report and was aware that Dr. Kirschner did not agree with the defendant's expert (Stephen Fitzgerald, Ph.D.) that the combination of [*18]military training, combat experiences, and the defendant's mental health condition resulted in the defendant obeying his friend's order to travel to New York City, obtain cocaine and heroin and transport that cocaine and heroin back to this County so that the defendant's friend could sell it.

During that informal conference (on the morning before jury selection) the prosecutor told the defendant's trial attorney that she would be agreeable to the defendant pleading guilty to the lesser charge of Criminal Possession of a Controlled Substance in the Second Degree with a determinate sentence of six and one half (6 ½) years followed by five (5) years post release supervision if the defendant would waive his right to appeal and make the plea before jury selection was commenced.

The Court then told the defendant's attorney that the Court would approve of the disposition that had just been offered by the People.

The defendant's attorney responded by telling the Court and the prosecutor that the defendant wanted lifetime probation.

The prosecutor told the defendant's trial attorney that she would not agree to lifetime probation.

The Court told the defendant's attorney that the Court would not approve a disposition that only included a sentence of probation. Then the Court also explained to the defendant's trial attorney, the Court's philosophy regarding sentencing of those individuals who are convicted of a crime.

The defendant's trial attorney told the Court and the prosecutor that he would discuss the newest offer with his client and the informal meeting concluded.

What took place during that brief informal conference before jury selection at 8:35 AM on November 14, 2011 is born out by the Court's handwritten notes and by the Court's and the trial attorney's subsequent conversation at 9:15 AM that same day (page 4, lines 18 - 24 inclusive) in which the Court asked the defendant's attorney if he had discussed with his client, what had been talked about at the earlier informal meeting and in which the defendant's trial attorney indicated that he had and that he (trial counsel) wanted the Court to also talk to the defendant about the conversation that had taken place earlier that morning. See Exhibit # 46, which is a redacted copy of the Court's handwritten notes of the informal meeting at 8:35 AM on November 14, 2011.

At 9:15 AM that same morning, (still prior to the commencement of jury selection) the prosecutor, the defendant's trial attorney and the defendant met in the Court's chambers to ready for commencement of jury selection. The Court's confidential law assistant and the court reporter were also present during that second conference and the court reporter's transcript of that conference is part of the record in this matter.

As was just explained, that 9:15 AM conference (on November 14, 2011) began by the Court introducing the various people present to the defendant. After noting that the court clerk would be along shortly,^[FN12] the Court attempted to learn whether or not the defendant was [*19]interested in the offer the prosecutor had made a few minutes earlier. The Court then asked the defendant's trial attorney if he (Defense Counsel) had discussed with his client, what had been talked about by the Court, the prosecutor and Defense Counsel a few minutes earlier (during the 8:35 AM informal meeting).

In response to that question, the defendant's trial attorney informed the court that he had discussed the conversation with the defendant and that he (Defense Counsel) would like the Court to also discuss that conversation with the defendant. See Exhibit # 47, which is page 4 of the court reporter's transcript of the November 14, 2011 conference that commenced at 9:15 AM (in chambers and not in the presence of the prospective jurors).

What Trial Counsel's response to that question meant was that he (Trial Counsel) had explained to the defendant that it was his (Trial Counsel's) opinion that the defendant should accept the offer made by the People that morning; that the defendant was not willing to accept the offer and still wanted to go to trial despite his attorney's advice; and that maybe the Court would be able to convince the defendant of the wisdom of accepting the People's offer. Trial Counsel's assurance to the Court and in the presence of the defendant), that he had just explained everything to the defendant that needed to be explained and Trial Counsel's request that the Court try talking to the defendant, coupled with the facts that the defendant had heard most of the People's evidence (during the May 3, 2011) suppression hearing, the defendant knew that the People's expert had clearly refuted the defendant's proposed defense demonstrates that there is no reasonable possibility that Attorney Buchman had not adequately advised the defendant of the wisdom of accepting or rejecting the plea that had been offered to him that morning. On the other hand, the only evidence to support that claim is the defendant's own self serving written statement dated November 30, 2013 (which also has credibility concerns).

For the foregoing reasons, that part of the defendant's motion which seeks an order vacating the judgment of conviction because the defendant's attorney did not advise him of the wisdom of accepting the People's offers of leniency is denied with out a hearing.

The next issue to be determined is the allegation by the defendant's current attorney, that the defendant's trial attorney did not understand the law surrounding the issues of intent or mens rea as it pertained to the first count of the indictment nor the affirmative defenses of entrapment and mental disease or defect.

The defendant's current attorney has also asserted that the transcript of the charge conference demonstrates that defendant's trial attorney did not understand the concept of mens rea, intent and the affirmative defenses of entrapment and mental disease or defect. The Court initially notes that inasmuch as the defendant's current attorney relies on the record of the proceedings to support this allegation and inasmuch as the defendant's trial attorney (who was in contact with the defendant's family a few days after the defendant was sentenced and who stated as early as April, 2012 that he had been retained to prosecute the defendant's appeal) has not explained why this issue was not raised on appeal, any part of his motion seeking an order vacating the judgment on this particular ground should be denied.

Nevertheless, the transcripts of the complete case demonstrate that the defense being proffered in this case was that: as a result of the defendant's military training, which among other things included following orders without question, from a person in a superior position as is necessary during combat, coupled with the defendant's mental condition which included among [*20]other things, impaired judgment as a result of concussions the defendant received during his deployment to Iraq, flashbacks which placed the defendant in a "battle buddy" frame of mind and depression, the defendant did not act voluntarily and the defendant was not aware that his conduct was criminal when he drove to New York City to purchase cocaine when ordered to do so by his friend "Jakie," (the confidential informant) who was actually the head of the drug trafficking operation attributed to the defendant.

The transcripts of the complete record also demonstrate that the defendant's trial attorney did understand the affirmative defense of entrapment and that he argued strenuously in favor of having the jury instructed on the affirmative defense of entrapment before closing arguments on November 18, 2011.

The transcript demonstrates that part of the defense being proffered in the case was that the confidential informant in this case, Charles Jacobs or "Jakie," had been made an agent of the drug task force after he was found possessing drugs on February 4, 2010; that Jakie (the confidential informant), who was a friend of the defendant, knew the defendant was vulnerable and would drive to New York City and obtain cocaine and heroin for Jakie, that Jakie told the defendant to go to New York City and obtain the drugs; that Jakie did so knowing the defendant would honor his request that Jakie would be able to keep track of the defendant by cell telephone during the trip and report the defendant's movements to the police and; that by doing so, Jakie had essentially entrapped the defendant so that the defendant would be convicted and Jakie could reap the benefit of having assisted the drug task force with a successful the arrest and conviction of another person and escape prosecution himself for the drugs he (Jakie) was found possessing on February 4, 2010.

The entrapment defense that was presented to the jury was not inconsistent with the military training-mental illness defense being proffered in this case. The defendant's attorney was successful to the point that he was able to make that case before the jury and to the point that the Court granted the defendant an entrapment charge. The fact that the defense did not result in the defendant being acquitted does not mean that the defendant's trial attorney did not understand the entrapment defense.

Furthermore, the transcripts of the complete record also demonstrate that the defendant's trial attorney understood the legalities of mental disease or defect defenses. The defendant's trial attorney knew from his interactions with the defendant, the evaluation that was made by the defendant's mental health expert (Dr. Fitzgerald) and from the other documents and information he had received, that the defendant understood the proceeding against him and that the defendant was able to assist in his own defense. He understood that extreme emotional disturbance was not a possibility. Knowing that his client, who had been accepted into the wounded warriors unit, had subsequently been discharged from the Army for medical reasons and had successfully obtained a veteran disability pension for post traumatic stress disorder and knowing that his client was determined to proceed with a mental health defense, his (the defendant's trial attorney's) only remaining options were to argue either "not responsible as a result of mental disease or defect," (which Defense Counsel knew could result in the defendant being confined in a secure setting until examinations and a finding that the defendant no longer had a dangerous mental disorder and was no longer mentally ill were completed) or the catchall "mental disease or defect in connection with any other defense not specified." The fact that the defendant's trial [*21]attorney was very guarded (during the pendency of the matter) about specifying the nature of the mental disease or defect defense he was going to present and actually held off informing the prosecutor about the military training mental illness defense that his client had described to Dr. Fitzgerald (the defendant's mental health expert) until forced to do so does not mean that Attorney Buchman did not understand the mental disease or defect provisions of the Criminal Procedure Law or the Penal Law. The fact that the defendant's trial attorney did his best to prevent the foreclosure of the opportunity to present either plausible defense (not responsible because of mental disease or defect and the nature of the catchall found in Crim. Proc. L. sect. 250.10; subd. 1, para c) and the fact that the defense ultimately proffered was not successful do not mean that the defendant's trial attorney did not understand the law regarding mental disease or defect.

The next issue to be decided is the allegation by the defendant's current attorney, that the defendant's trial attorney was ineffective for embarking on two different and implausible defenses.

The defendant's (Crim. Proc. L. Art. 440) counsel has also alleged that the defendant's trial attorney was ineffective for embarking on two different implausible defenses. The Court does not agree with Counsel's assertion.

The Court initially notes that (as is the case with his claim that the defendant's trial attorney did not understand the law regarding the issues in the case and the law regarding mens rea, intent, entrapment and mental disease or defect) the defendant's current attorney relies on the available record of the proceedings to support his assertion that Trial Counsel embarked on two implausible defenses. The defendant's current attorney has failed to explain, despite the timely notice of appeal and despite the fact that he was retained to perfect the appeal shortly after the defendant was sentenced, why that appeal was not perfected and why this issue was not raised on appeal. As such, the allegation is not worthy of consideration. Nevertheless, in fairness to the defendant, the Court will consider it.

As was explained earlier, the defendant's attorney pursued a defense which purported that as a result of the defendant's military training, which among other things, included following: the defendant accepted "orders" (without question) from a person in a superior position, (as is necessary during combat), coupled with the defendant's mental condition which included, among other things, impaired judgment as a result of concussions the defendant received during his deployment to Iraq, and flashbacks which placed the defendant in a "battle buddy" frame of mind and depression, the defendant did not act voluntarily and the defendant was not aware that his conduct was criminal when he drove to New York City to purchase cocaine when ordered to do so by his friend "Jakie," (the confidential informant) who, the defense was purporting, was actually directing a drug trafficking operation in this community. This defense was not trial counsel's creation. As will be shown by the documentation in this case and by the transcripts of the proceeding, the defense that was proffered was the defendant's own creation.

The theme of the statements the defendant made to his own mental health expert (Dr. Fitzgerald), to the People's mental health expert (Dr. Kirschner) and to the probation officer who conducted the pre-sentence investigation consistently describe a scenario in which potholes in the road, closed doors and people speaking in Arabic triggered the defendant's flash backs and made the defendant feel like he was operating as if he were still in combat. The theme included the [*22]defendant telling all of the professionals involved in this case, that he (the defendant) considered his friend Jakie to be his "battle buddy" and the leader of the team to which the defendant belonged; that for the sake of the team and the operation the team upon which the team was to embark, the defendant was required to carry out Jakie's orders; and that when Jakie told him (the defendant) to go to New York City to obtain drugs, the defendant believed he had to do so.

Furthermore, the testimony of the defendant's expert, Dr. Fitzgerald, demonstrates that the defendant had made up his mind in June (2011) that he was going to exercise his right to a jury trial; and that he was going to use the battle buddy/mental illness defense at trial.

Dr. Fitzgerald testified that during his initial meeting with the defendant, he explained to the defendant that there were two parts to his (Dr Fitzgerald's) services. Dr Fitzgerald testified that he explained to the defendant that the first part of his services consisted of the evaluation and that the second part of his (Dr Fitzgerald's) service would be his possible testimony at trial. Dr. Fitzgerald testified that while he was trying to explain that the second part of his (Dr Fitzgerald's) service would be possibly testifying at trial, the defendant reacted by adamantly telling Dr. Fitzgerald that there was going to be a trial. See Exhibit # 48 attached hereto, which is page 971 of the trial transcript..

As far as the defense being implausible, as is also shown by the trial testimony of the defendant's mental health expert, (a qualified mental health expert with experience diagnosing combat veterans) he, (Dr. Fitzgerald) endorsed that defense. See Exhibit # 49, which consists of the testimony by the defendant's mental health expert.

Furthermore, while the proffered defense was not likely to result in an acquittal, the defense was not implausible. As was explained earlier, the defense of entrapment or that the defendant was set up by the confidential informant, Jakie, who was working for the drug task force, and the defense that the defendant's military training, war experiences and mental condition made it likely that he would do what his friend Jakie told him to do (in other words, made the defendant susceptible to being entrapped) were not inconsistent approaches. One was part of the other.

Finally, inasmuch as the defendant would not accept the People's offers, the Counsel's only option was to present the defense his client wanted him to present. After all, it is the defendant who determines whether or not to plead guilty to a crime.

In sum, the documentation in the case and Dr. Fitzgerald's testimony demonstrate that the defense proffered in this case was the defendant's creation; that the defendant had made up his mind long before trial that he was going to pursue that defense; that the defendant's own expert (Dr. Fitzgerald) endorsed that defense and that Attorney Buchman had no other choice than to employ his professional skills to present that defense.

It is only the defendant who may choose whether or not to plead guilty. The fact that the only defense Attorney Buchman had available was not successful does not mean that Attorney Buchman was ineffective for presenting that defense.

The next issue to be determined is the suggestion by the defendant's current attorney that the Court improperly and to the defendant's detriment, conducted its own investigation into the defendant's character and mental capacity. That suggestion is incorrect.

To support his claim that the court may have conducted its own investigation into the [*23]defendant's character and mental capacity, the defendant's current attorney has offered an e-mail communication from the defendant's former commander at Fort Drum which was sent to the lead detective who initiated and investigated this case. The e-mail communication to which the defendant's current attorney refers was read aloud to the defendant on the morning that jury selection was to commence after the defendant's attorney had implied to the Court that he (the defendant's trial attorney) had been unable to convince the defendant that he should accept the offer that the People had made a few minutes before and after the defendant's attorney asked the Court to explain the defendant's prospects to him (the defendant).

The defendant's current attorney has suggested that there is no way to determine, from the record, whether the information contained in the e-mail was solicited by the Court and that a fact finding hearing is necessary in order to make such a determination. Attorney Brackley also relies on this Court's reference (in chambers on the morning of November 14, 2011) to the defendant's mental capacity to support the claim that the Court conducted its own investigation into the defendant's mental capacity.

As stated earlier, the Court does not agree with Attorney Brackley's analysis. This Court did not conduct its own investigation into the defendant's mental capacity or character. In fact, aside from advising the Attorney Buchman that the Court would give consideration to any documented or recorded injuries or illnesses the defendant incurred while he was serving our nation, this Court did not solicit any information about the defendant from any source whatsoever.

Every record, document, report or other information this Court received about the defendant prior to the jury verdict on November 18, 2011 was provided to this Court by Attorney Buchman or by the People. Furthermore, every record, document, report or other information this Court received about the defendant from the date of arrest until the completion of sentencing on January 13, 2012 was also received by Attorney Buchman and by the prosecutor.

Turning to the e-mail message from the defendant's former commander (Ray Moore), at 8:35 on the morning of November 14, 2011, the People provided Attorney Buchman and the Court with a thick packet of documents which the People referred to as Rosario materials.^[FN13]

The packet included a tremendous number of duplicates. Furthermore, most of the papers contained in the People's Rosario packet had already been provided to the Court (by the parties) on previous occasions. Additionally, the Court was already familiar with the what had been testified to by many of the witnesses and with the criminal histories of two of the prosecution's witnesses. As such, the Court was able to look through the Rosario materials rather quickly. The only items in the Rosario materials which did appear to be new were the records pertaining to the cars belonging (or registered) to the defendant or his wife; the Provost Marshal's Records; and the November 8, 2011 e-mail communications between Detective James P. McNitt and the defendant's former commanding officer at Fort Drum. These new documents were located near the bottom of the People's Rosario packet. That fact drew the Court's attention to those particular documents that morning.

If Attorney Brackley were to review the transcript of November 14, 2011 at page 9, he would see that Attorney Buchman acknowledged knowing that the communication from Ray Moore was included in the People's Rosario packet. Furthermore, if Attorney Brackley would examine the entire document memorializing the November 8, 2011 e-mail communications (which are attached hereto as Exhibit # 50), he would see that the e-mail with which he takes issue (and the information contained in it) were elicited from the defendant's former commander by the lead detective on the case, Detective James P. McNitt and that the communication and the information contained in the e-mail was not solicited by this Court.

Attorney Brackley's allegation that the Court made the original inquiry to the defendant's former commander (Ray Moore) is absolutely refuted by the actual e-mail communications between Detective James McNitt and Ray Moore on November 8, 2011.

Paragraph c of subsection 4 of section 440.30 of the Criminal Procedure Law permits the Court to consider the merits of a motion and to deny it without conducting a hearing if a fact essential to the motion is conclusively refuted by unquestionable documentary proof. As such, that part of the defendant's motion which seeks a hearing to determine whether this Court improperly solicited the information from the defendant's former commander and an order vacating the judgment of conviction because of such allegation is denied without a hearing.

As to Attorney Brackley's assertion that the source of the Court's other information about the defendant's mental capacity is this Court's own investigation of the defendant, on April 25, 2011, the defendant's attorney delivered to the Court, a stack of photocopied medical records.^[FN14] If Attorney Brackley would examine that stack of medical records he would see that those records are replete with entries which call into question, the veracity of the defendant's reported [*24]symptoms.

For example, on July 25, 2008, Carin Bosco, M.D., a staff psychiatrist at Walter Reed Army Medical Center reported that the only history of the defendant having suffered a concussion was his own self report and that there was no documentation by the theater clinic, that the defendant did not meet the full DSM IV ^[FN15] criteria for post traumatic stress disorder and that the symptoms he was reporting could be the result of consuming more than the amount of medication being prescribed to him. See Exhibit # 51 attached hereto, which is a copy of Dr. Bosco's July 25, 2008 report.

As another example of the defendant's self reported symptoms being called into question, on June 26, 2009, Allan Landes, Ph.D., a clinical psychologist at the Veterans Affairs Medical Center in Syracuse stated that during an interview, the defendant reported an almost total recall for recent or remote details. Dr. Landes continued by explaining that while the defendant's narrative clearly described an intact memory function; the defendant reported a level of dysfunction that was disproved by later narrative or behavior. Dr. Landes stated that intentional manipulation of the defendant's self-presentation could not be ruled out; that some of the defendant's narrative is quite implausible and appears to be conflabulatory; that the defendant reported having significant daytime fatigue and nodding off at tasks, but "never during driving, but some close calls." Dr. Landes concluded that his impression was that the defendant was an inconsistent and atypical historian, making the reliability of the data reported by him, sub-optimal. See Exhibit # 52 attached hereto, which is a copy of Dr. Lande's June 26, 2009 report.

As a final example, the medical records for the defendant's first five (5) days of military service indicate that on the second day of service (May 6, 2005) the defendant reported to the reception center medical clinic for treatment of lightheadedness, nausea and vomiting; that on the third day of service (May 7, 2005) the defendant reported to the reception center medical clinic at 8:38 AM for treatment of nausea and vomiting; that on the fourth day of service (May 8, 2005) the defendant reported to the reception center medical clinic for treatment of migraines, vomiting and nausea; that on the fifth day of military service (May 9, 2005) the defendant reported to the reception center medical clinic for treatment of diarrhea and nausea and that during that visit the defendant acknowledged that his reason for being there (at the clinic) was that he did not want to be in the military and he did not want to be away from his family. See Exhibit # 53 attached hereto, which are copies of the records of the defendant's visits to the medical clinic during the second through fifth days in the Army.

The foregoing are only three examples of the entries in the defendant's Army medical records which indicate that several of the defendant's medical treatment providers had doubts as to the veracity of the symptoms the defendant was reporting at various times during his period of military service and after his discharge from the Army. That stack of medical records (which the Court received from the defendant's trial attorney on April 25, 2011) demonstrates that while the Court did have (prior to jury selection) substantial information about the defendant's medical conditions (including that the defendant suffered from post traumatic stress disorder) the Court did not receive that information through an investigation conducted by the Court. As was the case with the e-mail communication from the defendant's former commander, the information the [*25]Court had about the defendant's service related medical conditions did not come to the Court's attention as a result of the Court soliciting such information or as a result of the Court conducting its own investigation into the defendant's character and background. Those medical records came from the defendant's trial attorney during his (trial counsel's) efforts to obtain a more lenient disposition for his client. That information was not obtained through an investigation conducted by this Court.

Attorney Brackley's allegation that the source of the Court's information about the defendant's mental capacity was the Court's own investigation of the defendant is refuted by the medical records the defendant's attorney provided to the Court on April 25, 2011 (to which trial counsel referred during his cross examination of the People's mental health expert).

Paragraph c of subsection 4 of section 440.30 of the Criminal Procedure Law permits the Court to consider the merits of a motion and to deny it without conducting a hearing if a fact essential to the motion is conclusively refuted by unquestionable documentary proof. The Rosario materials provided by the People and the medical records provided by the defendant's trial attorney refute the suggestion that this Court conducted its own investigation of the defendant's character and mental capacity. As such, that part of the defendant's motion which seeks a hearing to determine whether this Court improperly solicited the information about the defendant's character and mental capacity and an order vacating the judgment of conviction because of such allegation is denied without a hearing.

The next issue to be discussed is whether the Court was biased against the defendant. In addition to erroneously suggesting that the Court conducted its own investigation of the defendant, the defendant's current attorney has also suggested that this Court was biased against the defendant and that the Court's bias is demonstrated by a statement the Court made to the defendant on the record, in chambers, before the commencement of jury selection on November 14, 2011. The statement quoted by the defendant's current attorney (and upon which the defendant's current attorney relies) appears in the record. The quoted statement upon which the defendant's current attorney relies pertains to a written report written by the People's mental health expert, Stuart M. Kirschner, Ph.D and submitted by the People as is required by subdivision 4 of section 250.10 of the Criminal Procedure Law.

The defendant's current attorney has taken the Court's on-the-record statement about Dr. Kirschner's report out of context by failing to explain that the statement was made by the Court during a conference held immediately before trial, during which the defendant was offered one final opportunity to plead to a lesser offense with a guaranteed sentence that was significantly less than what the defendant would have to receive if he were to be convicted of the highest count in the indictment. Additionally, the defendant's post conviction attorney has failed to acknowledge (in his moving papers), that what the Court said to the defendant about Dr. Kirschner's report was accurate.

At 8:35 AM on November 14, 2011, the prosecutor and the defendant's trial attorney met in the Court's chambers to state whether or not there were any remaining issues to be worked out before the trial could be commenced. The People provided the trial counsel and the Court with Rosario materials during that brief meeting. Also during that informal conference, the Court asked the defendant's attorney if he (Defense Counsel) had received and read Dr. Kirschner's report and was aware that Dr. Kirschner did not agree with the defendant's expert (Stephen [*26]Fitzgerald, Ph.D.). As was explained earlier herein, during that informal conference (on the morning before jury selection) the prosecutor told the defendant's trial attorney that she would be agreeable to the defendant pleading guilty to the lesser charge of Criminal Possession of a Controlled Substance in the Second Degree with a determinate sentence of six and one half (6 ½) year followed by five (5) years post release supervision if the defendant would waive his right to appeal and make the plea before jury selection was commenced.

The Court told the defendant's attorney that the Court would approve of the disposition offered by the People during that informal conference.

The defendant's attorney then told the Court and the prosecutor that the defendant wanted lifetime probation.

The prosecutor told the defendant's trial attorney that she would not agree to lifetime probation.

The Court told the defendant's attorney that the Court would not approve a disposition that only included a sentence of probation. Then the Court also explained to the defendant's trial attorney, this Court's philosophy regarding sentencing of those individuals who are convicted of a crime.

The defendant's trial attorney told the Court and the prosecutor that he would discuss the newest offer with his client and the informal meeting concluded.

What took place during that brief informal conference before jury selection at 8:35 AM on November 14, 2011 is born out by the Court's handwritten notes and by the Court's and the trial attorney's subsequent conversation at 9:15 AM that same day (page 4, lines 18 - 24 inclusive) in which the Court asked the defendant's attorney if he had discussed with his client, what had been talked about at the earlier informal meeting and in which the defendant's trial attorney indicated that he had and that he (trial counsel) wanted the Court to also talk to the defendant about the conversation that took place earlier that morning. See Exhibit # 54, which is a redacted copy of the Court's handwritten notes of the informal meeting at 8:35 AM on November 14, 2011 and page 4 of the court reporter's transcript of the November 14, 2011 conference that commenced at 9:15 AM (in chambers and not in the presence of the prospective jurors).

In response to that question, the defendant's trial attorney informed the court that he had discussed the conversation with the defendant and that he (Defense Counsel) would like the Court to also discuss that conversation with the defendant.

The Court agreed to talk to the defendant and it was in that context that the Court stated on the record (but outside the presence of the potential jurors) that the report submitted by the People's expert mental health witness (Dr. Kirschner) refuted any potential defense of mental illness or disease. The Court's exact words are contained on Page 5 of the transcript and the statement in Dr. Kirschner's report to which the Court was referring is contained on the first page of that report (approximately ¾ way down the page under the heading "Conclusion," and it reads, "I further conclude that there is no support for any psychiatric defense in this case." See Exhibit # 55 attached hereto which consists of page 5 of the court reporter's transcript of the November 14, 2011 conference that commenced at 9:15 AM (in chambers and not in the presence of the prospective jurors)and the first page of the written report of Stuart M. Kirschner, Ph.D. dated November 7, 2011.

This court's paraphrasing to the defendant, of what Dr. Kirschner stated in his report, was consistent with what Dr. Kirschner had stated. Furthermore, the context in which the Court made that statement to the defendant (and the context in which the Court had his law assistant read the e-mail the defendant's former commander had sent to Detective McNitt) was that the defendant's attorney had asked the Court to discuss with the defendant, the risk that his defense that was based on a combination of military training, combat experiences, mental illness, entrapment, etc. In other words, the purpose of that entire conversation in chambers between 9:15 AM and 9:25 AM before jury selection on November 14, 2011 was to insure that the defendant understood the risk he faced if the jurors were to hear testimony from Dr. Kirschner. The conversation did not take place because of any bias on the part of this Court. This is borne out by the transcript of that conversation. See Exhibit # 56 attached hereto, which consists of the page 4, line 12 through and including page 10, line 10 of the November 14, 2011 transcript.

The defendant's current attorney has also asserted that the statements this Court made when the Court pronounced sentence on the defendant, support the allegation that the Court was biased against the defendant.

The statements at issue are contained in the record. As such, this issue should have been raised on appeal.

The Court has examined the statements and has determined that the Court did not act improperly or with bias when the Court sentenced the defendant to a determinate term of eleven (11) years followed by a period of post release supervision after he was convicted of Criminal Possession of a Controlled Substance in the First Degree.

Subdivision 3 of section 380.50 of the Criminal Procedure Law states that the Court may summarize the factors it considers relevant for the purpose of sentence and afford the defendant or his attorney the opportunity to comment thereon. The Court's statements during sentencing appear in the record. The purpose of the Court's statements during sentencing was to point out to the defendant that his efforts to convince the jury that his experiences and mental health conditions prevented him from forming the intent to commit a crime were not convincing and to encourage the defendant (and the general public as well) to be truthful in any future legal matters. Those purposes are consistent with the deterrent and rehabilitative purposes of the Penal Law. See Penal L. Section 1.05 (6). The Court's statements were supported by the pre-sentence report prepared in connection with the defendant's sentencing and the credible evidence which was presented during the trial. In no way do the Court's statements at sentencing demonstrate that the Court is or was biased against this defendant.

The next issue to be discussed is the insinuation at page 4, paragraph 7 of his affidavit and the bottom of page 5 and top of page 6 of the memorandum, by the defendant's current attorney, that this Court failed to rule on the defendant's motion for permission to file a late notice of intent to present psychiatric evidence.

The Court initially notes that Defense Counsel filed the motion for permission to file a

Furthermore, the Court did not rule on that motion on the record on July 8, 2011 as has [*27]been suggested in the moving papers. The Court ruled on the defendant's June 1, 2011 motion (in limine) on June 29, 2011 by the issuance of a detailed written decision and order. See Exhibit # 57 attached hereto, which is a copy of the Court's June 29, 2011 decision-order granting the defendant permission to file a late notice of intent to offer psychiatric evidence.

The next issue which needs discussion or clarification is the assertion (which begins at page 4, paragraph 8, of coram nobis Counsel's Affirmation in Support of Motion to Vacate Judgment), that Attorney Buchman informed the prosecutor by e-mail "that he expected to lose at trial." That is not what Attorney Buchman stated in his August 26, 2011 e-mail to the prosecutor. He wrote, "I'm not saying that I expect to win this case . . . your case is solid." There is a difference.

The statement Attorney Brackley would attribute to trial counsel is that trial counsel acknowledged to the prosecutor that he (Trial Counsel) knew if the case went to trial, the jury would find the defendant guilty, when what Attorney Buchman was actually conveying was that he knew the People had a strong case and that he knew that taking the case to trial could be risky for the defense.

Another assertion by the defendant's current attorney which requires discussion is found at page 5 of the attorney's Attorney Brackley's Affirmation in Support of Motion to Vacate Judgment and at page 6 of his memorandum, in which he refers to the defendant's trial attorney as "close-to-clueless."

Attorney Brackley would have the reader believe that Attorney Buchman stated in an August 26, 2011 e-mail communication (which this Court was not privy to and in which Attorney Buchman continued to seek leniency from the prosecutor), that he (Attorney Buchman) thought he could sell the defendant on an indeterminate sentence of two to four (2-4) years. Attorney Brackley has insinuated that Attorney Buchman was "close-to-clueless" regarding the fact that felony drug cases require a determinate sentence.

An examination of the e-mail at issue shows that Attorney Buchman's statement is too ambiguous to support Attorney Brackley's conclusion that Attorney Buchman was "close-to-clueless." Attorney Buchman did not qualify his statement to the prosecutor by saying he thought he could sell the defendant on an indeterminate two to four. See Exhibit # 58, attached hereto, which is a copy of the August 26, 2011 e-mail Attorney Buchman sent to the prosecutor in which the Attorney Buchman merely said two to four.

Inasmuch as subparagraph I of paragraph a of subdivision 5 of section 220.10 of the Criminal Procedure Law permits a plea to a class B drug felony when the indictment charges one of the class A felonies defined Article 200.20, Attorney Buchman could just as easily have been negotiating for a determinate sentence of between two years and four years. Crim. Proc. L. 220.10 (5) (a) (I). Attorney Brackley's characterization of Attorney Buchman being "close-to-clueless" about the limitations to plea bargaining because he (the defendant's trial attorney tried to secure a sentence of between two and four years is an inaccurate characterization.

The assertion by the defendant's current attorney (at page 7 of his Affirmation in Support of Motion to Vacate Judgment and at page 9 of his memorandum), that the defendant and his attorney were only given five (5) minutes on September 28, 2011 to consider the People's offer of an A-II drug felony in exchange for five and one half (5½) years plus five (5) years post release supervision also requires clarification. That assertion is also incorrect.

As is demonstrated by the prosecutor's August 31, 2011 e-mail communication to the defendant's trial attorney, the People's (5 + 5 ½) offer had been made by the prosecutor on August 31, 2011 and as such, Attorney Buchman and the defendant had had four (4) weeks prior to September 28, 2011 to discuss that particular offer (five and one half (5½) years plus five (5) years post release supervision). See Exhibit # 59 attached hereto, which is a copy of an August 31, 2011 e-mail Chief Assistant District Attorney Kristyna Mills sent to Attorney Buchman.

Finally on the issue of trial counsel's effectiveness, in addition to whether the defendant lacked the capacity, as a result of mental disease to defect, to understand the proceeding against him and to assist in his own defense and whether the defendant's trial attorney sufficiently advised the defendant that in his opinion (trial counsel's) the defendant should accept the offers that had been made by the People, a thorough discussion of the effectiveness of the defendant's trial attorney must include the services that were provided by the defendant's trial attorney.

In addition securing a reduction in bail which allowed his client to remain free while the matter was pending and in addition to securing several approved plea offers, including the offer of a determinate five (5) years, the defendant's trial attorney issued discovery demands, a pre-trial motion which resulted in a combined Huntley and Mapp hearing, a Clayton hearing and an audibility hearing.

The defendant's trial attorney successfully argued long and strenuously for disclosure of the electronic recordings that the People vehemently opposed disclosing. He obtained all of the defendant's medical and service records for use at trial. That particular endeavor included tracking down a difficult-to-find record that was made by an medical emergency field station in Iraq. Attorney Buchman took steps to insure that the records of this County's 911 emergency dispatch center, (which are purged periodically) were not destroyed so that he could use those records to cross examine the officer involved in the stop and arrest of the defendant. He issued subpoenas duces tecum and subpoenas for the attendance of witnesses at trial. He obtained the services of a qualified mental health expert to explain the defendant's circumstance to the jury. Attorney Buchman even convinced this Court that the defendant was entitled to receive copies of the lead detective's cellular telephone records.

The defendant's former attorney engaged in appropriate voir dire during jury selection. He cross examined the People's witnesses during the People's direct case. He presented his own witnesses during the defendant's case. He argued for the entrapment instruction which was the basis of the defense being offered. Finally, despite the fact that by the time the defendant was sentenced, the defendant and his family had expressed their displeasure with his services, Attorney Buchman filed a timely notice of appeal so that his client could have any errors made on the record could be reviewed on appeal.

The fact that the defendant's trial attorney was unable to convince the defendant of the wisdom of accepting the plea offers that had been made by the People and approved by the Court and the fact that the defense the defendant insisted on presenting did not result in an acquittal, by no means proves that, but for counsel's failures, the defendant would not have been convicted at trial.

In conclusion, the documentation in this case, the fact that the defendant was able to travel alone from New York City to Jefferson County and to attend college and obtain an associate's degree in criminal justice while this matter was pending, the defendant's appearance [*28]and attentiveness during pre-trial proceedings and the evaluations conducted by the defendant's expert and the People's expert all demonstrate that there is no doubt as to the defendant's capacity to understand the proceeding and/or to assist in his defense while this matter was pending against him.

The defendant's self serving statement to the effect that his trial attorney did not explain to him the wisdom of accepting the plea offers made by the People is neither credible nor sufficient to overcome the documentation in this case that demonstrates that there is no reasonable possibility that the defendant's trial attorney, who was under the watchful supervision of this Court (and who on November 14, 2011 indicated to the Court that he had been unable to convince the defendant to accept the People's offer and asked the Court to talk to him) did not fully explain to the defendant over the previous twenty one (21) months, what the People's case was, the weaknesses in his own defense, the sentencing exposure he was facing and the likeliness of an acquittal. As is shown by Dr. Fitzgerald's testimony, the defendant had made up his mind by the time Dr. Fitzgerald had met with him (that he was going to exercise his right to a trial).

An examination of the complete record and the documents produced during the pendency of the criminal matter prove that this court did not conduct its own investigation into the defendant's character or mental health. As to bias, with an active Army post in this county, the defendant is not the first war veteran to appear before this Court. As is reflected in its sentencing history, this Court (with the approval of the district attorney) has always strived to treat these wounded men and women with understanding and consideration for the sacrifices they have made for our country. Neither the fact that the Court was willing to consider the defendant's injuries and mental condition in determining an appropriate sentence nor the fact that prior to jury commencement this Court took steps to insure that the defendant understood what he was facing if he went to trial, are grounds to support the assertion that this Court was biased against the defendant.

As to the Court's statements at sentencing, the Court's words at sentencing were within the parameters of what is permitted of a sentencing court and the purpose of the Court's words on that day was to instill in the defendant that he should be truthful to the Court and to himself. Those words do not demonstrate that the Court was biased against the defendant.

The defendant's trial attorney utilized all of the skill and resources available to him in his representation of the defendant and was not ineffective in that regard.

Despite that a timely notice of appeal was filed on the defendant's behalf and despite the fact that most of the issues raised in the pending Crim. Proc. L. Article 440 motion are based on facts which appear in the record and could have been raised on appeal, no appeal of right was ever perfected. There has been no explanation offered in the moving papers as to why the defendant's appeal as of right was not perfected. For that reason, those parts of the motion which are based on facts contained in the record should be denied.

For the reasons stated in this decision-order, the defendant's motion for an order of this Court recusing itself is denied.

For the reasons stated in this decision-order, the defendant's motion for a hearing on the allegation made in this motion is denied.

For the reasons stated in this decision-order, the defendant's motion for an order re-sentencing him to six and one half ( 6½ ) years followed by five (5) years post release [*29]supervision is denied.

For the reasons stated in this decision-order, the defendant's motion for an order vacating the judgment of conviction id denied.

This decision constitutes the order of this Court.