People v. Brooks, 6110/12.

• Decision Date: 05 March 2013
• Docket Number: No. 6110/12.,6110/12.
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Tyre BROOKS, Defendant.
• Court: New York Supreme Court

38 Misc.3d 1230
967 N.Y.S.2d 868
2013 N.Y. Slip Op. 50342

The PEOPLE of the State of New York, Plaintiff,
v.
Tyre BROOKS, Defendant.

No. 6110/12.

Supreme Court, Kings County, New York.

March 5, 2013.

ELIZABETH A. FOLEY, J.

Defendant moves to vacate his judgment of conviction, obtained by his plea of guilty to Attempted Robbery in the Second Degree, pursuant to CPL § 440.10(1)(h), claiming his plea was not voluntary due to several mental illnesses including bipolar disorder, depression and attention deficit hyperactivity disorder, and because he received ineffective legal representation from his former attorney due to a failure to seek youthful offender status as part of his plea agreement. After a review of the moving papers, the People's opposition, the pertinent Supreme Court file and relevant statutory and caselaw authority, defendant's motion is denied.

On August 31, 2010, defendant, then sixteen years of age, was arraigned in Supreme Court on the instant Indictment and charged with various felonies with respect to his alleged participation in the robbery of two victims on separate dates, including two counts of Robbery in the Second Degree, Attempted Robbery in the First Degree, Robbery and Attempted Robbery in the Third Degree, and Grand Larceny the Fourth Degree, as well as related misdemeanor and violation charges. Following his arraignment, defendant consulted with his former attorney, Michael Colihan, Esq., and subsequently pleaded guilty to Attempted Robbery in the Second Degree in full satisfaction of the pending Indictment, in exchange for the promise that defendant would be sentenced to a definite term of imprisonment of one year with a waiver of early release (DiMango, J.). In his moving papers, defendant acknowledges that at the time of his plea no other promises were made with respect to sentence, and that Court was not asked to consider affording youthful offender status to defendant. Thereafter, defendant appeared before this Court on September 20, 2011 for the imposition of the promised sentence. In pertinent part, prior to the pronouncement of sentence, the attorney for defendant inquired whether or not application of youthful offender status was mandatory; when the Court indicated affording youthful offender status to defendant was not noted in the Supreme Court file, and the People concurred, counsel asked whether or not this Court would consider sentencing defendant as a youthful offender; whereupon the following exchange took place:

The Court: If you wish, I'll send you back to Judge DiMango, she can make the decision. It's her case. I don't even see that. Do you see the probation record?

Mr. Colihan: I didn't say they recommend it, but I don't think there's any—but Mr. Brooks says he's ready to be sentenced today.

The Court then imposed the negotiated sentence.

Here, defendant claims that his former attorney did not adequately explain the ramifications of the plea agreement and failed to request consideration of defendant as a youthful offender, and that in speaking with such counsel, defendant “believed that because of my age I would not end up with a permanent felony conviction,” and in addition, because of his mental illness, defendant was unable to understand the consequences of his guilty plea.

Upon the record before the Court, including, inter alia, the minutes of the plea proceeding, defendant, with the aid of counsel, negotiated a plea bargain and knowingly and intelligently pleaded guilty to Attempted Robbery in the Second Degree (PL § 110/160.10[1] ) as a violent “D” felony in...