People v. Lewis
| Decision Date | 11 July 2014 |
| Citation | 989 N.Y.S.2d 590,45 Misc.3d 396,2014 N.Y. Slip Op. 24186 |
| Parties | The PEOPLE of the State of New York v. Kenneth LEWIS, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Benjamin Ostrer, Esq., Chester.
Ravi Kantha, Assistant District Attorney Office of the Bronx District Attorney.
By motion submitted January 7, 2014, defendant moved to vacate his conviction pursuant to Criminal Procedure Law § 440.10(1)(h) on the basis that he was denied effective assistance of counsel in violation the Sixth Amendment of the United States Constitution and article I, § 6 of the New York State Constitution. By decision dated March 19, 2014, this court denied defendant's motion. This expands that decision.
On May 11, 1985, the defendant was brought to Montefiore Hospital for an illness. Upon arriving, the defendant informed both a nurse and a hospital security guard that he had a gun in his bag. The defendant was arrested and charged with possessing a loaded and defaced firearm. On May 23, 1985, the grand jury returned a True Bill charging defendant by way of indictment with two counts of criminal possession of a weapon in the third degree (Penal Law §§ 265.02[3], [4] ).
On January 21, 1986, judgment was entered against the defendant in Supreme Court, Bronx County (Goldfluss, J.), convicting him upon his plea of guilty on December 31, 1985, to one count of criminal possession of a weapon in the third degree (PL 265.02[4] ), a violent felony offense, and sentencing him as a prior felony offender 1 to an indeterminate term of four years imprisonment with a mandatory minimum period of two years incarceration. No direct appeal was taken.
On October 30, 1990, judgment was entered against the defendant in Supreme Court, Bronx County (Fisch, J.), convicting him upon his plea of guilty on to burglary in the second degree, a violent felony offense, and sentencing him as a prior violent felony offender to an indeterminate term of eight years imprisonment with a mandatory minimum period of four years incarceration.
On July 27, 2000, judgment was entered against the defendant in Supreme Court, Bronx County (Cirigliano, J.), convicting him upon his plea of guilty on to burglary in the second degree. Based on the two previous violent felony convictions, the defendant was designated a mandatory persistent violent felony offender, and sentenced to a term of life imprisonment with a mandatory minimum period of twenty-one years incarceration.
As noted, by motion submitted January 7, 2014, defendant moved to vacate his 1986 judgment of conviction pursuant to CPL 440.10(1)(h), claiming both that his guilty plea was involuntary, and that defense counsel rendered ineffective assistance of counsel. Specifically, defendant alleges defense counsel failed to advise him that he was pleading guilty to a violent felony offense, and that it would subject him to an enhanced term of imprisonment upon a subsequent violent felony conviction. Defendant claims it was precisely such alleged failure that precluded him from understanding the potential consequences of his plea, thus rendering it involuntary. Finally, defendant asserts that had counsel advised him that he was entering a guilty plea to a violent felony offense as well as the future implications of doing so, he would have elected to proceed with trial.
The People, in opposition to defendant's motion, argue that it should be summarily denied because he failed to satisfy his burden of sufficiently corroborating the factual allegations. Moreover, given the strength of the evidence against him, it is irrational to believe he would have risked exposing himself to a lengthy prison term if convicted after trial. Finally, the People argue that since future sentence enhancements are of a collateral nature, they do not render a guilty plea invalid.
In opposing defendant's motion, the People argue that defendant failed to satisfy his burden of proving ineffective assistance of counsel because the defendant (1), (2) failed to establish prejudice, and (3) is not entitled to CPL 440.10 relief for consequences of a conviction that are collateral in nature such as future sentence enhancement. The People further argue that it is irrational for defendant to now claim that he would have proceeded to trial given the strength of the evidence against him, and exposure to a lengthy term of imprisonment associated with a violent felony conviction.
Criminal Procedure Law § 440.30(4) provides in relevant part:
Upon considering the merits of [a CPL 440.10] motion, the court may deny it without conducting a hearing if (b) [t]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or (d) an allegation of fact essential to support the motion (i) is contradicted by a court record or other official document or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all other circumstances attending to the case, there is no reasonably possibility that such allegation is true (CPL 440.30[4] ).
A judgment of conviction is presumed valid, and a defendant moving to vacate his conviction bears the “burden of coming forward with sufficient allegations to create an issue of fact” ( People v. Session, 34 N.Y.2d 254, 255, 357 N.Y.S.2d 409, 313 N.E.2d 728 [1974] ). Because the defense failed to provide an affidavit Mr. Jaffe stating the defendant was not advised about pleading guilty to a violent felony, the People assert the ineffective assistance of counsel claim is unsubstantiated. The People further argue that the lack of an affidavit supports their contention that the defendant has failed to sufficiently corroborate his claim. Statutorily, the People are correct. Failure to provide an affidavit from counsel warrants summary denial of defendant's motion because absent any other evidence that defense counsel failed to inform him of potential increased future sentencing consequences, he is unable to “substantiate all the essential facts” (see CPL § 440.30[4][b]; see People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 [1983], citing People v. Scott, 10 N.Y.2d 380, 223 N.Y.S.2d 472, 179 N.E.2d 486 [1961] [] ).
The absence of an attorney's affidavit, however, by itself, is not dispositive ( see Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 [1983] ). In fact, an affidavit of counsel is not required where the defendant raises an ineffective assistance claim based on alleged error or omissionof trial counsel ( People v. Radcliffe, 298 A.D.2d 533, 749 N.Y.S.2d 257 [2nd Dept.2002] ). ( Radcliffe at 534, 749 N.Y.S.2d 257).
Here, the defendant neither provided an affidavit from his attorney, Howard Jaffe, nor explained his efforts to obtain one. Indeed, Mr. Jaffe is the only person from whom evidence substantiating defendant's claim can be adduced. Accordingly, being that there is “no reasonable possibility that the allegation is true,” defendant's motion must be summarily denied (CPL 440.30[4][d] [ii] ).
Almost three decades after conviction, the defendant asserts his guilty plea to criminal possession of a weapon in the third degree is invalid because it was not entered into knowingly, intelligently, or voluntarily. This assertion is based on the claim that the defendant believed he was pleading guilty to New York Penal Law § 265.02(3), a non-violent felony offense, instead of § 265.02(4), a violent felony offense (affirmation of defendant's counsel at 1). The problem with this claim is that it is just that: an unsupported conclusory assertion. His wholly unambiguous allocution clearly reflects that he admitted to every fact necessary to establish each element of criminal possession of a weapon in the third degree. In short, the defendant admitted to possessing a loaded firearm, factually and legally. His claim to the contrary, then, lacks even so much as a shred of credibility.
Indeed, defendant's only support for this claim is a ministerial transposition error in a subsequently created document. Whether the defendant believed the crime to which he was allocating was subsection (3) or (4) is of no consequence. Defendant, in his own words, expressed that he had a loaded gun inside a bag. Even a cursory glance at the statutory language of Penal Law § 265.02(4) clearly states, (PL 265.02[4] ). Notwithstanding that subsection (4) is not explicitly mentioned during the allocution, the record clearly reflects the defendant was certain about having possessed a loaded firearm.
(Discussion off the record between Mr. Jaffe and the defendant.)
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People v. Lewis
...unanimously dismissed, as subsumed within the appeal from the July 11, 2014 order.The court's summary denial of the motion (45 Misc.3d 396, 989 N.Y.S.2d 590 [Sup.Ct. Bronx County] ) was proper, because there was no factual dispute that was sufficient to warrant a hearing. Defendant's 1986 c......