Rosario v. Laffin
| Decision Date | 11 June 2014 |
| Docket Number | 13-CV-00181 (JFB) |
| Parties | LEONARDO ROSARIO, Petitioner, v. SUPERINTENDENT TIMOTHY LAFFIN, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Leonardo Rosario ("Rosario" or "petitioner") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in a state court. On December 9, 2008, petitioner entered pleas of guilty to two counts of assault in the second degree (N.Y. Penal Law § 120.05), two counts of vehicular assault in the second degree (N.Y. Penal Law § 120.03), two counts of operating a motor vehicle while under the influence of alcohol as a felony (N.Y. Veh. & Traf. Law § 1192(3)), three counts of assault in the third degree (N.Y. Penal Law § 120.00), three counts of reckless endangerment in the second degree (N.Y. Penal Law § 120.20), one count of reckless driving (N.Y. Veh. & Traf. Law § 1212), and one count of passing a red light (N.Y. Veh. & Traf. Law § 1111.D1).
Before petitioner pleaded guilty to these charges, the trial judge indicated his intention to sentence petitioner to an aggregate term of five years' imprisonment, followed by three years of post-release supervision. After entry of petitioner's guilty plea, the trial judge sentenced petitioner accordingly, i.e., to five years' imprisonment followed by three years of post-release supervision. However, after sentencing petitioner, the trial judge learned that the law required him to impose five years of post-release supervision. Consequently, the trial judge held a new hearing, during which he explained the mistake to petitioner and petitioner's counsel. Petitioner's counsel indicated that it would be appropriate for the judge to modify petitioner's sentence, and the judge resentenced petitioner to five years of post-release supervision to follow his five years in prison.
In the instant petition, petitioner raises the following two issues related to his resentencing: (1) ineffective assistance of counsel, and (2) the trial judge's failure to advise him of his right to withdraw his guilty plea. For the reasons set forth herein, the Court concludes that there is no basis for habeas relief, and denies the petition in its entirety.
The Court has adduced the following facts from the instant petition and the underlying record.
In the early morning of July 5, 2008, petitioner drove his car through a red light at the intersection of Merrick Avenue and Sunrise Highway, and he collided with a taxi cab. (See P. at 9-10; Decision & Order, at 1, People v. Rosario, Ind. No. 1771N-08 (N.Y. Sup. Ct. Jan. 23, 2012).)1 Four of the taxi's occupants were seriously injured. (Decision & Order, at 1, People v. Rosario, Ind. No. 1771N-08 (N.Y. Sup. Ct. Jan. 23, 2012).) Upon arriving at the scene of the accident, police officers observed petitioner leaning against his car in order to maintain his balance. (Id.) Petitioner told the police officers that he had consumed vodka within four hours of the accident. (Id.) The officers arrested petitioner at approximately 3:35 a.m., and took him to the Nassau County Medical Center. (Id. at 1 -2.)
Petitioner's blood was drawn at the hospital, and analysis of his blood showed a blood alcohol content of .12 percent. (Id. at 2.) The relevant forensic report indicates that the crime laboratory received the specimen on July 8, 2008, and that the date of incident was July 5, 2008. (Id.) However, the report stated (erroneously) that the blood sample had been drawn on June 5, 2008. (Id.)
A Nassau County grand jury returned indictments charging petitioner with two counts of assault in the second degree (N.Y. Penal Law § 120.05), two counts of vehicular assault in the second degree (N.Y. Penal Law § 120.03), two counts of operating a motor vehicle while under the influence of alcohol as a felony (N.Y. Veh. & Traf. Law § 1192(3)), three counts of assault in the third degree (N.Y. Penal Law § 120.00), three counts of reckless endangerment in the second degree (N.Y. Penal Law § 120.20), one count of reckless driving (N.Y. Veh. & Traf. Law § 1212), and one count of passing a red light (N.Y. Veh. & Traf. Law § 1111.D1). (See Decision & Order, People v. Rosario, Ind. No. 1771N-08 (N.Y. Sup. Ct. Jan. 23, 2012).)
Represented by counsel, petitioner entered pleas of guilty to all charges against him on December 9, 2008. (P. at 13.) Before petitioner entered guilty pleas, the trial judge advised petitioner of the rights he was relinquishing. (See id. at 5-6.) The trial judge also informed petitioner of the maximum sentences for each charge. Concerning assault in the second degree, he told petitioner that each count carried "a maximum sentence of seven years plus three years post-release supervision." (Id. at 7.) The trial judge indicated, however, that he intended to "cap [his] sentence in the aggregate of five years," in addition to"three years of post-release supervision." (Id. at 8.) The trial judge continued, "If, in my judgment, I feel that I must sentence you to more than five years, I will let you withdraw your plea and you will not be in any worse legal position than you are here today." (Id. at 9.) Petitioner stated that he understood what the trial judge had just told him. (Id.)
As part of the plea colloquy, petitioner admitted to the facts supporting the charges to which he was pleading guilty. Specifically, he admitted that, on July 5, 2008, he was driving recklessly while intoxicated, ran a red light at the intersection of Merrick Avenue and Sunrise Highway, and assaulted two people with his vehicle, causing them serious physical injury. (Id. at 9-10.) Petitioner then entered pleas of guilty to all charges against him. (Id. at 12-13.)
Petitioner and his counsel appeared in court for sentencing on February 20, 2009. Petitioner's counsel requested leniency. (S. at 9.2) Specifically, petitioner's counsel asked the trial judge "to cap [petitioner's] punishment at five years," as the trial judge had indicated he would do at petitioner's plea hearing. (Id. at 8.)
The trial judge followed defense counsel's recommendation and imposed the following sentence. For each count of assault in the second degree, he sentenced petitioner to five years' imprisonment followed by three years of post-release supervision. (Id. at 13.) He sentenced petitioner to a term of one-and-one-third to four years' imprisonment for each count of vehicular assault in the second degree and driving while intoxicated. (Id. at 13-14.)3 He further sentenced petitioner to one year's imprisonment for each count of assault in the third degree and reckless endangerment. (Id. at 14.) Finally, he sentenced petitioner to thirty days' imprisonment for reckless driving, and fifteen days' imprisonment for passing a red light. (Id.) The trial judge ordered all sentences to run concurrently, thereby resulting in an aggregate sentence of five years' imprisonment followed by three years of post-release supervision. (Id.)
On June 2, 2009, the trial judge informed petitioner and his counsel that he had made a mistake in sentencing petitioner. Specifically, he explained that the law required him to sentence petitioner to five years of post-release supervision, instead of the three years of post-release supervision that he had imposed. (See R. at 2.4) The trial judge told petitioner, (Id.) The trial judge then informed petitioner's counsel that he could resentence petitioner to five years of post-release supervision, and petitioner's counsel indicated that such a sentence would be appropriate. (Id. at 3.) Accordingly, the trial judge adjusted petitioner's sentence to include five years' post-release supervision. (Id.)
Petitioner's counsel also requested that petitioner be imprisoned at the Fishkill Correctional Facility, where he could receive treatment for his problem of drivingwhile intoxicated. (Id.) The trial judge agreed to make such a recommendation. (Id. at 3-4.)
Petitioner filed an appeal in the Supreme Court, Appellate Division (the "Appellate Division"), arguing that his sentence was excessive. (See generally Appellant Br., People v. Rosario, AD No. 2009-06536 (N.Y. App. Div.).) On January 25, 2011, the Appellate Division determined that petitioner's argument was without merit, and affirmed the judgment of conviction and sentence. See People v. Rosario, 915 N.Y.S.2d 511 (N.Y. App. Div. 2011). The New York Court of Appeals denied petitioner's application for leave to appeal on April 11, 2011. See People v. Rosario, 16 N.Y.3d 862 (2011).
On June 28, 2011, petitioner, proceeding pro se, filed a motion to vacate his judgment of conviction pursuant to N.Y. Crim. Proc. Law § 440.10 in New York Supreme Court. (See generally Mot. to Vacate J., People v. Rosario, Ind. No. 1771N-08 (N.Y. Sup. Ct. June 28, 2011).) For the first time, petitioner contended that the indictments against him had been supported by legally insufficient evidence because the forensic report stated mistakenly that the blood sample showing a blood alcohol content of .12 percent had been drawn on June 5, 2008. (Id. at 5-9.) Petitioner also argued that he was denied the right to effective assistance of counsel, in that his counsel had failed to inform him that he could have withdrawn his guilty plea after learning that the court mistakenly sentenced him to three years of post-release supervision. (Id. at 9-10.) Finally, petitioner asserted that his guilty plea had not been made knowingly, voluntarily, and intelligently, because the trial judge had failed to advise him of the mandatory five-years of post-release supervision that resulted from his guilty plea. (Id. at 11 -13.)
The ...
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