People v. K.M.

• Decision Date: 21 June 2021
• Parties: The People of the State of New York, Plaintiff, v. K.M., Defendant.
• Court: New York Supreme Court

2021 NY Slip Op 50754(U)

The People of the State of New York, Plaintiff, v. K.M., Defendant.

Supreme Court, Suffolk County

June 21, 2021

Unpublished Opinion

HONORABLE TIMOTHY D. SINI District Attorney of Suffolk County DANA BROWN, Esq., of counsel

MICHAEL ALBER, Esq. Attorney for the Defendant

HON CHRIS ANN KELLEY, A.J.S.C.

QUESTION PRESENTED

Upon Defendant's application to vacate his August 20, 2018 felony plea pursuant to CPL §440.10, and this Court having conducted a hearing thereon, does the evidence presented demonstrate a constitutionally defective plea and/or constitutionally defective representation by plea counsel?

PART 1 - FACTUAL BACKGROUND

On May 15, 2018, Defendant was arrested and charged with Sexual Abuse in the First Degree, for allegedly touching and rubbing the vagina of his girlfriend's 10 year-old-child under her clothing.

On August 20, 2018, Defendant waived indictment and plead guilty on the above-captioned Superior Court Information to one count of Sexual Abuse in the First Degree (PL 130.65[3]) and one count of Endangering the Welfare of a Child (PL 260.10[1]), with a negotiated conditional disposition to interim probation. If the defendant were to fail to complete interim probation, he faced conviction of the felony with enhanced sentence. If the defendant were to successfully complete interim probation, the felony conviction would be withdrawn, and defendant would be sentenced to a term of probation on the misdemeanor conviction.

On August 23, 2018 (three days after Defendant's plea) Probation Officer Anderson and Probation Officer Papp made an unscheduled visit to the Defendant's home in East Patchogue. Judge Wilutis subsequently conducted a hearing on the Defendant's conduct on 08/23/18, and determined based upon the credible evidence that the following took place:

"The officers introduced themselves and explained to the defendant that although he had been given the name of another officer, the defendant would be reporting to Officer Anderson who is in the Special Offenders Unit. They proceeded to have a conversation in which Officer Anderson went over some of the probation conditions with the defendant. Officer Anderson also explained that she would need to do a search of the house and asked the defendant if there were any weapons in the house to which the defendant answered in the negative. She also inquired as to any other occupants in the home and the defendant stated that he lived alone. The defendant further stated that he was the vice president of a mortgage company and Officer Anderson told the defendant that he would not be allowed to make visits to any of his clients' homes.

The officers then conducted a search of the home. While in the defendant's bedroom, Officer Anderson opened the top drawer of a night stand adjacent to the defendant's bed. Within that drawer, an ASP expandable baton which is typically used by law enforcement, brass knuckles, and a large stun gun were found. Officer Anderson then requested assistance from the Suffolk County Police Department. Subsequently, two smaller stun guns, a large machete, two baseball bats, a money counter, and a large sum of cash were discovered. The Suffolk County Police Department charged the defendant with four counts of Criminal Possession of a Weapon in violation of Penal Law §265.02(3) and two counts of Criminal Contempt in the Second Degree in violation of Penal Law §215.50(3)." (Judge Wilutis decision of 01/28/19, Pg. 2).

On August 27, 2018 (seven days after Defendant's plea) Probation Officer Anderson filed a violation of probation based upon the conduct of August 23, 2018 described above.

On October 15, 2018 (fifty-six days after Defendant's plea), Defendant filed a motion to withdraw his plea of guilty pursuant to CPL §220.60, on the grounds of ineffective assistance of counsel and actual innocence.

On December 4, 2018, Judge Kahn issued a decision denying the application to withdraw the plea and ordered the Defendant to appear for further proceedings.

On January 7, 2019, Judge Wilutis conducted a violation of interim probation hearing, at which multiple witnesses testified including Senior Probation Officer Anderson, Defendant's brother, Raymond M, and Defendant's sister, Irene Consiglio. It appears, from Judge Wilutis' decision that Defendant argued against his violation on the grounds that Defendant did not understand the plea or the terms of probation:

"The defendant has failed to submit any evidence that would corroborate his claim that he did not understand the probation conditions. Other than the testimony of his siblings who stated that they have had to help the defendant to read complex documents in the past, the defense offered no experts or written documentation that could substantiate the defendant's claim and provide a justifiable excuse for violating the conditions of his interim probation."

On January 28, 2019, Judge Wilutis issued a decision which found Defendant in violation of interim probation.

On March 21, 2019, Defendant was interviewed by the Suffolk County Department of Probation in preparation for his sentencing. Defendant denied having any sexual or inappropriate contact with the child victim and "remained insistent that he did nothing wrong." The Pre-Sentence Investigation report noted that:

"The defendant advised that he plead guilty at the advice of his attorney, who he has since fired. He claimed that he was scared and confused at the time he took the plea and was trying to avoid a lengthy jail sentence. He insisted that the police statements made by both his victim I.K. and her mother A.G. were fabricated and untrue. The defendant indicated that he is learning disabled and that the Court procedure was not adequately explained to him. He stated that his rights were violated as per the 'American Disability Act'." [ ]

"M informed that since the passing of his mother in 2010 he has suffered from severe anxiety and panic attacks. He indicated that he sees a psychiatrist monthly and is prescribed Xanax.

The defendant indicated that as a result of this offense he has been involved with group sex offender therapy with Ms. Emily Chappell. On March 20, 2019 contact was made with Ms. Chappell. She advised that the defendant has attended treatment as scheduled, but has taken no responsibility for his offense and has not admitted to any wrongdoing. Ms. Chappell indicated that at one point the defendant stated that he may have touched his victim's stomach and private area inadvertently while searching for the remote control, but due to his prescription medication is unsure. When questioned regarding this, the defendant denied ever making that statement. Ms. Chappell stated that if the defendant is unwilling to take responsibility for his offense, he will be discharged from treatment."

On April 8, 2019, Judge Wilutis sentenced the Defendant to five months jail and 10 years of probation supervision on the felony of Sexual Abuse in the First Degree and certified the defendant a sex offender. Judge Wilutis also conducted a risk level assessment hearing on the Defendant pursuant to Correction Law §168-n. Evidence submitted at the risk level assessment hearing included a page of the Probation intake questionnaire filled out by the Defendant. In response to the question "If you have ever had any serious mental or physical health problems, please describe," Defendant wrote the word "No." Judge Wilutis adjudicated the Defendant a level-two sexually violent offender.

On November 14, 2019, the Department of Probation filed a Violation of Probation against the Defendant.

On December 10, 2019 Judge Wilutis signed the Declaration of Delinquency on the Violation of Probation. This Violation of Probation is still pending, and held in abeyance pending the resolution of the instant CPL §440.10 proceedings.

PART 2 - PROCEDURAL HISTORY

On October 10, 2019, Defendant filed a motion pursuant to CPL §440.10, seeking to vacate the Defendant's plea on a number of bases. Attached to the motion were several documents in support of the application, including an affidavit from the Defendant, in which he stated, inter alia:

"Please find attached documentation with respect to my learning disability and generalized anxiety disorder. I was under the most amount of pressure in my life when I walked in to the courtroom before your honor to take the plea. Based upon my previous attorney telling me to say yes in the hallway to the questions, under pressure, I followed his advice. Further, I had difficulty comprehending the whole plea proceeding and what was happening. I respectfully request that the Court vacate the plea and allow me to proceed to trial. I am innocent of the charges, and I was not in a clear frame of mind at the plea, and due to my anxiety and the pressure I experienced, I took the plea."

The motion also included an affidavit from Raymond M Defendant's brother, in which he stated, inter alia:

"I arrived at the courthouse at approximately 9:15 AM. I Went through security and up to your honor's courtroom. I sat outside the courtroom with my brother, K, and we waited for Mr. Russo, K's previous attorney to arrive. Mr. Russo arrived at the courtroom, during the course of his explanation to K as to what would happen in the courtroom, I heard K telling Mr. Russo that he did not want to take the plea. Mr. Russo told K if he did not take the plea, he would not represent K anymore. Further, Mr, Russo said in sum that the DA and the Court would be mad if K did not take the plea that Mr. Russo said he worked out with the DA. He further said to K if you don't take the plea, you are going to get seven (7) years, I did not witness Mr. Russo discuss any options with K, other than what I perceived to be him

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