People v. Boehm, 2004 NY Slip Op 50945(U) (NY 8/30/2004)

• Decision Date: 30 August 2004
• Docket Number: 921-03.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK v. ROBERT BOEHM, Defendant.
• Court: New York Court of Appeals Court of Appeals

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2004 NY Slip Op 50945(U)

THE PEOPLE OF THE STATE OF NEW YORK v. ROBERT BOEHM, Defendant.

921-03.

Supreme Court of the State of New York, Queens County.

Decided August 30, 2004.

RICHARD A. BROWN, D.A. A.D.A. MARYAM LIPKANSKY Opposed DEFENDANT PRO SE For the Motion.

SEYMOUR ROTKER, J.

The following constitutes the opinion, decision and order of the Court.

By letter dated August 1, 2004, and motion dated August 12, 2004, defendant seeks an order of the court to withdraw his plea of guilty to Burglary in the Second Degree upon the ground that it was obtained in violation of his constitutional rights. Also included in his August 12, 2004 motion is an application by defendant for reassignment of counsel.

Defendant's claims are that he was denied effective assistance of counsel.¹ Specifically, in his August 1, 2004 letter, defendant asserts that his presently assigned counsel has failed to provide him with a transcript of a Sandoval hearing.² Furthermore, defendant indicates that he has not yet received a copy of the waiver of appeal that he executed in this matter.³ Additionally, defendant claims that he has requested investigative reports and transcripts taken by investigators hired by his counsel and has not received these materials. Thus, defendant argues after reviewing "the Statement of Client's Rights," that he has been denied sufficient information to participate meaningfully in the development of his case and has not had his concerns addressed in a prompt manner.⁴

In his August 12, 2004 motion to withdraw his plea, defendant asserts that he is not guilty, was confused and "uninformed when he pleaded guilty. Deponent believes that had he not been told to plead guilty and had he not been deprived of effective assistance of counsel that he would not have pleaded guilty." Defendant also moves for reassignment of counsel in this August 12, 2004 motion.

In response, the People have filed an affirmation in opposition dated August 25, 2004, whereby they assert that defendant's motion should be denied in its entirety because the record of defendant's plea demonstrates that defendant fully understood the proceedings and the implications of his plea. Defendant himself asked questions when he sought clarification of issues and represented that his plea was knowingly, intelligently and voluntarily made. In opposition to defendant's claim of ineffective assistance of counsel, the prosecution argues that defendant's claims are unsupported by the record and that defendant's history of antagonizing five of his previously assigned attorneys within the period of just over a year invalidates his argument.

For the reasons stated herein, defendant's motion is denied.

FACTS

Defendant was charged in a three-count indictment filed on June 13, 2003, with the crimes of: Burglary in the Second Degree (PL 140.25(2)); Grand Larceny in the Third Degree (PL 155.35) and Criminal Mischief in the Fourth Degree (PL 145.00(1)).

On April 29, 2004, after an extensive explanation of his plea and promised sentence, including an in-depth explanation of his post-release parole supervision, defendant voluntarily entered a plea of guilty to Burglary in the Second Degree. See Plea Minutes annexed to People's Response as Exhibit "A." The plea was taken pursuant to Alford v. North Carolina, 400 U.S. 25 (1970), and People v. Serrano, 15 N.Y.2d 304 (1965). Defendant waived his right to appeal and executed the appropriate documentation indicating his intent to waive this right. Defendant was promised a definite sentence of 7 (seven) years incarceration after being arraigned as a Second Violent Felony Offender pursuant to Penal Law Section 70.04. Currently, defendant's sentence is scheduled for September 15, 2004.

In defendant's present motion before this Court, he is moving to withdraw his negotiated plea, upon the ground that his rights under the Sixth Amendment have been violated. Furthermore defendant moves for reassignment of counsel.

DECISION

I. Defendant is Not Entitled to Withdraw His Guilty Plea.

Pursuant to Criminal Procedure Law Section 220.60 (3) the court has discretionary authority to permit a defendant to withdraw a guilty plea and restore the indictment as it existed prior to the plea. However, before a defendant may be permitted to upset a judgment of conviction based upon a plea he must demonstrate that the plea was not voluntarily, knowingly and intelligently made. See People v. Leviyev, 256 A.D.2d 359, 681 N.Y.S.2d 766 (2d Dept. 1998); People v. Evans, 204 A.D.2d 346, 614 N.Y.S.2d 151 (2d Dept. 1994); People v. Stevens, 193 A.D.2d 635, 598 N.Y.S.2d 967 (2d Dept. 1993); see also People v. Martin, 227 A.D.2d 416, 642 N.Y.S.2d 548 (2d Dept. 1996).

The trial judge, best able to determine a motion to withdraw a guilty plea, is given discretion to determine if a plea is entered voluntarily, knowingly and intelligently. See People v. Alexander, 97 N.Y.2d 482, 743 N.Y.S.2d 45 (2002); People v. Rivas, 260 A.D.2d 583, 688 N.Y.S.2d 604 (2d Dept. 1999)(court properly exercised discretion in denying defendant's application to withdraw plea where defendant's claims of coercion and misinformation by his attorney were unsubstantiated and not supported by record); CPL 220.60(3). A plea of guilty, in general, "marks the end of a criminal case [and is] not a gateway to further litigation." See Alexander, supra at 485, quoting People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152 (1985). Thus, a plea of guilty is not withdrawn simply because a defendant makes a request. See Alexander, supra at 485.

Here, a review of the minutes of defendant's plea allocution reveals that he was neither coerced nor confused at the time. See People v. Rodriguez, 270 A.D.2d 434, 705 N.Y.S.2d 259 (2d Dept. 2000)(no hearing necessary where defendant was fully able to present his contentions and record revealed defendant was lucid, rational and unequivocal in assuring court he fully comprehended plea proceedings); People v. Hansen, 269 A.D.2d 467, 704 N.Y.S.2d 269 (2d Dept. 2000)(conclusory assertions by defendant that he was dazed and confused during plea and was innocent were without support and court properly exercised discretion to deny withdrawal of plea). Defendant's responses to the Court's inquiries, as well as the questions he asked, were coherent and reflected a complete understanding of the plea process and the consequences of his guilty plea. The Court specifically advised defendant on the record that he had the right to a trial by jury and that a jury panel was available. When the Court asked to have the panel brought over, defendant stated, "No, I want to take a disposition." See Plea Minutes at 7. Furthermore, the Court explained to defendant that he would be taking an Alford plea which meant that he did not have to admit culpability but, did have to answer questions so the Court would be satisfied that the negotiated plea was his wish and intended disposition. See id. at 7-8.

Defendant was sworn in and his attorney indicated that he wished to plead guilty. See id. at 8. The Court questioned defendant directly on the record and repeatedly advised defendant that he had the choice of having his case tried by a jury. The Court acknowledged its understanding that defendant wished to enter into a plea agreement because there was "a potential that you could be convicted of the crime of burglary in the second degree, and that because you would be a second felony offender, a second violent felony offender, that the sentence you face could be up to 15 years in state's prison. But that I am making a promise to you. I'm giving you the minimum sentence that I can under the law, which is seven years. . . . Is that what your understanding is, sir?" Defendant responded: "Yes, sir." See id. at 10.

Moreover, defendant was told by the Court that if any other promises had been made to him they were invalid. Defendant was asked if he understood that he was giving up his right to a jury trial, to hear and see witnesses, to appeal to any "higher court for any reason whatsoever," and that part of his sentence included a period of post-release parole supervision. Additionally, defendant was told that despite his request not to have his prior felony record available to the Department of Corrections, his conviction would be in the probation report and would be known.

Further demonstrating his voluntary, knowing and intelligent understanding of the plea agreement he was entering, defendant even asked the Court if it could waive or reduce the time for his post-release parole supervision, a mandatory requirement. The Court even accommodated defendant in his request to adjourn his sentence date for a long period so that he could remain in the area before going upstate to serve his time. Defendant asked to order minutes of a prior Court appearance which the Court denied and told defendant that if his intention was to appeal that he did not have that right since he waived any appeal upon taking the plea and executing the waiver of appeal. Thus, this Court finds that defendant's plea was knowing, voluntary and intelligently made and he cannot withdraw his plea for any of his alleged reasons.

In addition, defendant's current claim of innocence is conclusory and does not warrant the granting of a motion to withdraw a guilty plea where he has admitted committing the crime, subject to the limitations of Alford v. North Carolina, supra. See People v. McCaskell, 206 A.D.2d 547 (2d Dept. 1994), appeal denied, 84 N.Y.2d 869 (1994).⁵

As to defendant's protestations of innocence, we note that unlike an ordinary guilty plea, an Alford plea does not involve a recitation of guilt. On the contrary, it is typically tendered when a defendant, without admitting culpability (or while maintaining innocence), negotiates a guilty plea for fear of being convicted of a higher charge or being exposed to a greater sentence. Inasmuch as defendant tendered his plea without admitting guilt,...