People v. Hardy
| Decision Date | 30 November 2017 |
| Docket Number | Indictment No. 2015-01315D |
| Citation | 2017 NY Slip Op 33101 (U) |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK v. BRANDEN L. HARDY, Defendant. |
| Court | New York Supreme Court |
At a Criminal Special Term of Supreme Court, Part 9, held in and for the County of Erie and the State of New York at the Erie County Courthouse in the City of Buffalo on the 30th day of November 2017.
Defendant, pro se.
The defendant moves pursuant to section 440.10 of the Criminal Procedure Law for an order vacating the judgment of conviction obtained in the above- entitled matter.
On September 8, 2014, the defendant pleaded guilty to one count of Burglary in the Second Degree, a class C violent felony, in violation of section 140.25[2] of the Penal Law. He had been indicted on a charge of first degree burglary and a third degree weapon possession charge. Said charges arose out of the defendant's unlawful entry into the home of his former girlfriend at approximately 5:15 AM on August 2, 2015 and his intention to use a knife to harm her then current boyfriend. The defendant was sentenced on February 23, 2017 to a determinate term of five (5) years' imprisonment, to be followed by a five-year period of post-release supervision.
A notice of appeal was timely filed. Said appeal is pending.
On the instant motion, the defendant is seeking vacatur of his conviction on the ground that his guilty plea was not made knowingly and voluntarily:
Having examined the affidavits in support of the defendant's post-conviction motion and the opposing affidavits of the People, this court finds that the motion is without merit andaccordingly is denied.
Considering at the outset ground 1 of the defendant's motion, the issues forming the basis for said ground are matters of record. As such, subdivision two of CPL §440.10, which severely limits the availability of the post-conviction remedy by precluding a court from vacating a judgment of conviction if sufficient facts appear on the record, provides that:
The rationale for CPL §440.10[2][b] is that errors apparent on the face of the record are easily reviewable upon appeal, and as long as defendant has appealed or has ever had the opportunity to appeal, the law has afforded him adequate recourse (see People v. Bye. 95 Misc2d 1031).
The plea arrangement offered by the prosecution and this court's sentencing commitment appear on the face of the record. The proper method, then, to challenge the validity of the guilty plea is by way of an appeal (see People v. Howard, 12 NY2d 65; People v. Glover,71 Misc2d 4). Consequently, the defendant's motion, based onground 1, must be denied (see People v. Cuadrado, 9 NY3d 362; People v. Cooks, 67 NY2d 100; People v. Griffin, 115 AD2d 902).
Turning now to ground 2 of the defendant's motion, this court notes that there is a presumption of regularity attaching to judgments of conviction (see People v. Sessions, 34 NY2d 254; People v. Ramsey, 104 AD2d 388). Such presumptions impose upon a defendant the burden of coming forward with substantial evidence to rebut the presumptions (see People v. Pichardo, 168 AD2d 577).
While the production of contrary evidence will satisfy the burden of going forward and eliminate the presumption of regularity from the case, bare allegations are insufficient to carry this evidentiary burden (see People v. Session, supra; People v. Spencer, 32 NY2d 446). In the instant case, the allegation that defense counsel was ineffective as a result of misadvising him on the likely success of his speedy trial issues on direct appeal as a way to induce his acceptance of the prosecution's plea offer has not been substantiated. Beyond his own self-serving assertions, the defendant does not provide any documentary evidence showing that counsel had improperly advised him on the outcome of his speedy trial issues on appeal by assuring him that the Appellate Division will find in his favor and dismiss the indictment. In fact, defense counsel, as well as the prosecutor and this court, placed on the record of the plea proceeding that the defendant, by pleading guilty, would thereby waive his statutory speedy trial rights, but not his speedy trial rights under the U.S. Constitution (Plea Transcript, pp. 40-42; seePeople v. Taylor, 65 NY2d 1; People v. Suarez, 55 NY2d 940). The defendant acknowledged that he understood the distinction and stated that he was willing "to take the gamble" as he proceeded to plead guilty (see Plea Transcript, p. 43).
Under the New York standard, defense counsel is deemed effective so long as the evidence, law and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation (see People v. Baldi, 54 NY2d 137). The meaningful representation standard requires reasonable competence, not perfect representation, and focuses on the fairness of the process as a whole rather than any particular impact on the outcome of the case (see People v. Modica, 64 NY2d 828; People v. Benevento, 91 NY2d 708). The Federal standard applies a two-prong approach, which requires a showing both that counsel's performance was deficient and that the deficient advice actually had an adverse effect on the defense (see Strickland v. Washington, 466 US 668; People v. McDonald, 1 NY3d 109). The instant defendant has failed to meet his burden of showing ineffective assistance of counsel under either standard.
As a matter of fact, this court notes that defense counsel made proper pre-trial motions, including the omnibus pre-trial discovery motion and a Huntley motion. Moreover, counsel engaged in extensive plea negotiation with the prosecution and spent significant time discussing the proposed plea agreement with the defendant. Defense counsel appeared ready to proceed to trial if the defendant had chosen not to plead guilty.
In any event, a thorough examination of the court record reveals that under the totality of the circumstances, defense counsel exercised the skill and diligence that one could expect from an experienced trial attorney. Since the defendant pleaded guilty to the charges, he thereby waived all non-jurisdictional defects in the proceeding before this court (see People v. Nesbett, 255 AD2d 950; People v. Beaton, 303 AD2d 593), including the right to challenge any factual basis for the plea as well as any defenses (see People v. Harris, 15 AD3d 882 [4th Dept.]; see also People v. Parilla, 8 NY3d 654 - defendant failed to show that alleged ineffectiveness of counsel goes to the voluntariness of his guilty plea). Moreover, a guilty plea and the resulting conviction are presumptively voluntary, valid and not otherwise subject to collateral attack (see People v. Latham, 90 NY2d 795; United States v. Broce, 488 US 563; People v. Taylor, supra).
Since the defendant has called into question the validity of his guilty plea, it is now incumbent upon the court to determine whether or not the defendant made a knowing, intelligent and voluntary plea of guilty. A review of the entire court file indicates that at no stage in the proceedings did the defendant exhibit any aberrant behavior that would suggest he did not understand the proceedings. An examination of the plea transcript reveals that the defendant was lucid, was coherent, responded appropriately to questions posed by this court and stated that he was not under the care of a doctor or mental health professional for any illness that would negatively impact his ability to understand the nature of the proceedings (see Plea Transcript, pp. 33, 43-44).He also stated that he had not consumed any alcohol or drugs of any kind in the preceding twenty-four hour period (see Plea Transcript, pp. 33, 44). The defendant confirmed that he had enough time to discuss the plea offer with his attorney and that he was satisfied with the services his attorney had provided (see Plea Transcript, p. 44). He acknowledged that no promises, other than the sentencing commitment, were made by anyone to him in exchange for his guilty plea (see Plea Transcript, p. 54). The transcript further reveals that this court engaged in thorough, careful and thoughtful discussion of the effects of pleading guilty and not going to trial. This court fully discussed the legal principles involved in a guilty plea with the instant defendant (see Plea Transcript, pp. 44-49). The defendant affirmed that no one had forced him in any...
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