Opinion
4782/02.
Decided February 15, 2005.
VICTOR ALEXANDER, Defendant, pro se.
A.D.A. SUSAN E. BAUMGARTNER, Office of the District Attorney, Bronx County, Bronx, New York.
On June 3rd, 2003, defendant pled guilty before this Court to burglary in the first degree (P.L. § 140.30). On June 19th, 2003, defendant was sentenced to a determinate term of eight years. On defendant's appeal, the judgment of conviction was affirmed without opinion by the Appellate Division, First Department, in June 2004. People v. Alexander, 8 AD3d 1131 (1st Dep't 2004), lv denied 3 NY3d 669 (August 3rd, 2004).
By Notice of Motion dated October 8th, 2004, defendant now moves to vacate the judgment of conviction on the grounds that (1) his plea was not entered voluntarily, knowingly and intelligently because at the time, he suffered from a mental disease or defect which rendered him incapable of understanding the proceedings; and (2) he was denied the effective assistance of counsel, since his attorney failed to apprise the Court of his condition. The People oppose, contending, inter alia, that (1) defendant's claim as to the invalidity of his plea is meritless and is, in any event, record-based and should therefore be denied for his failure to raise it on appeal; and (2) that defendant's ineffective assistance claim is specifically refuted by defense counsel, whose affirmation is annexed as an exhibit to the People's papers, and is meritless in any event since, even assuming that defense counsel failed to apprise the Court of his condition, the result would not have been different.
The People infer from ambiguous language contained in a single sentence in defendant's Memorandum of Law that defendant is claiming prosecutorial misconduct as an additional ground to vacate the judgment of conviction. The Court infers no such claim. In any event, if such claim were interposed it would be summarily denied for defendant's failure to make sworn allegations substantiating or tending to substantiate all the essential facts on which it is based. C.P.L. § 440.30 (4) (b).
The Court has reviewed the applicable law and the following documents: (1) defendant's Notice of Motion dated October 8th, 2004; (2) defendant's Affidavit in Support dated October 8th, 2004; (3) defendant's Memorandum of Law dated October 15th, 2004; (4) defendant's Exhibit A, entitled "Psychiatrist and Mental Health Reports, Riker's Island, 2002;" (5) defendant's Exhibit B, entitled "Pre-sentence Investigation Report;" (6) defendant's Exhibit C, entitled "Mental Health Information Reports, Notes, Central New York Psychiatric Center;" (7) defendant's Exhibit D, entitled "Former Employer's Statement Letter;" (8) People's Affirmation in Opposition dated January 19th, 2005; (9) People's Memorandum of Law; (10) People's Exhibit 1, Affirmation of Warren C. Herland, Esq. dated January 18th, 2005; (11) People's Exhibit 2, minutes of plea proceeding on June 3rd, 2003; (12) People's Exhibit 3, minutes of sentencing proceeding on June 19th, 2003; (13) People's Exhibit 4, Notice of Motion dated March 12th, 2004, and papers submitted in support of defendant's motion to enlarge record; (14) People's Exhibit 5, Affirmation dated March 29th, 2004, and papers submitted in opposition to defendant's motion to enlarge record; (15) People's Exhibit 6, Affidavit in Reply dated April 7th, 2004, submitted in support of defendant's motion to enlarge record; (16) People's Exhibit 7, Brief For Defendant-Appellant submitted on defendant's appeal to the Appellate Division, First Department; (17) People's Exhibit 8, Respondent's Brief submitted to the Appellate Division; (18) People's Exhibit 9, Reply Brief submitted to the Appellate Division; (19) defendant's Affidavit in Reply to the instant motion dated February 1st, 2005; (20) defendant's Exhibit 1 in reply, excerpt from Diagnostic And Statistical Manual Of Mental Disorders; (21) defendant's Exhibit 2 in reply, letter to defendant from U.S. Senator Charles E. Schumer dated May 8th, 2002, and; (22) defendant's Exhibit 3 in reply, letter from Robert J. Pitcher, LCSW, dated December 28th, 2004.
Upon consideration of all of the foregoing, and for the reasons that follow, the motion is denied.
Factual and Procedural Background
On September 19th, 2002, three men entered the apartment of Latisha Briggs, displayed a knife, and demanded money and jewelry. After she had complied with their demand, the men bound Ms. Briggs and her two children with duct tape, and then taped them together so that they could not move. The men took a cellular telephone, a cordless telephone, three bracelets, a necklace and two rings from the apartment. Shortly thereafter, defendant was found in possession of some of the stolen items and arrested. He was indicted and charged with one count each of robbery in the first degree, robbery in the second degree, robbery in the third degree, burglary in the first degree, burglary in the second degree and criminal possession of a weapon in the fourth degree, two counts of endangering the welfare of a child, and three counts of unlawful imprisonment. No one was apprehended or charged as defendant's accomplice in the crimes committed in Ms. Briggs' apartment.
During his plea allocution defendant affirmed that he had committed the crime "with another person," whom he then identified as "Indio." (People's Exhibit 2 at 6, 9). However, his attorney's affirmation, submitted in opposition to the instant motion, indicates that defendant committed the crime with two other persons, one of whom was named "Rob." (People's Exhibit 1 at 4) It is unclear whether "Indio" and "Rob" are the same person.
At defendant's appearance before this Court on June 3rd, 2003, his attorney indicated that defendant wished to plead guilty to one count of burglary in the first degree in full satisfaction of the indictment, in exchange for which he would receive a sentence of eight years imprisonment, five years of post-release supervision and a three year order of protection on behalf of Ms. Briggs and her children. Before accepting defendant's plea, the Court conducted an extensive voir dire, during which defendant was under oath.
In response to the Court's inquiries defendant confirmed that he wished to withdraw his plea of not guilty and enter a plea of guilty. Defendant admitted that he had committed each of the elements of the crime to which he was pleading guilty and said, inter alia, that he had had sufficient time to speak with his attorney concerning his decision and that he had not been threatened, coerced or pressured into pleading guilty. Defendant told the Court that he understood that by pleading guilty he was waiving his rights to go to trial, to remain silent, to have his attorney confront and cross-examine the witnesses against him, his right to have the People prove him guilty beyond a reasonable doubt, and to appeal either his plea or the sentence to be imposed upon his judgment of conviction. When asked if there was anything the Court said which he did not understand, defendant told the Court, "I understand everything." (People's Exhibit 2 at 8). When asked if he had any questions about this process which he wished to ask the Court, he said, "No, your honor." ( Id. at 9). Further, nothing occurred, nor was anything said by defendant or anyone else, which would indicate that defendant was not competent, or that he did not in fact fully understand the plea proceedings. The matter was then adjourned to June 19th, 2003, for the imposition of sentence. After reviewing the pre-sentence report, and hearing the People, defense counsel and defendant the Court sentenced defendant to a determinate term of eight years, and issued an order of protection, in accordance with the plea agreement.
Before pronouncing sentence the Court asked defendant if he wished to make a statement. In response, defendant said, inter alia, "I would like to express my deep sorrow and regret about this, especially to the two little girls that were there." (People's Exhibit 3 at 4).
Discusssion
Defendant's instant motion to vacate the judgment of conviction must be summarily denied since the grounds raised therein were either previously determined on the merits upon appeal or, to the extent they were not determined, sufficient facts appeared upon the record of the plea proceedings to have permitted adequate appellate review of such grounds but for defendant's unjustifiable failure to raise them. C.P.L. § 440.10 (2) (a) and (2) (c).
Explaining the rationale behind the summary denial provisions of section 440.10 (2), the Appellate Division has noted:
[T]he purpose of a CPL article 440 motion `is to inform a court of facts not reflected in the record and unknown at the time of the judgment. . . . By its very nature, the procedure cannot be used as a vehicle for an additional appeal' ( People v. Donovan, 107 AD2d 433, 443, lv denied 65 NY2d 694 [citation omitted]).
People v. Berezansky, 229 AD2d 768, 771 (3rd Dep't 1996).
A ground to vacate a judgment of conviction need not have been framed in precisely the same language on appeal as it is later framed in a C.P.L. 440.10 motion, in order for the motion to be summarily denied under section 440.10 (2) (a). Regardless of the specific language used, if the underlying error or flaw which the movant asserts in his or her C.P.L. 440.10 motion as grounds for vacatur, is discernibly the same as that which (s)he has asserted on appeal and the appellate court has disposed of the claim on the merits, a defendant's C.P.L. 440.10 motion must be denied. See People v. Skinner, 154 AD2d 216 (1st Dep't 1990).
In Skinner, for example, the defendant was convicted after a jury trial of, inter alia, attempted murder in the second degree. During deliberations the jury sent eleven notes to the trial judge. 154 AD2d at 219. In one of the notes the foreperson informed the Court that one juror wanted to be replaced with an alternate due to the emotional strain of the deliberations and another wanted to be removed because of abuse and intimidation by other jurors. Id. at 218. In response the judge, without objection, gave the jury an "Allen-type" charge. Id. On appeal defendant claimed that "` the [trial] court should have held a hearing upon defense counsel's request to determine the juror's [sic] reasons for requesting to be relieved.' (Emphasis added.)" Id. at 220. The judgment of conviction was affirmed without opinion. People v. Skinner, 110 AD2d 1093 (1st Dep't 1985).
Six years after the verdict, following a hearing on defendant's postconviction [sic] motion pursuant to C.P.L. 440.10, the hearing court (before another Judge, the Trial Judge having retired) vacated this conviction on the ground that the trial court had failed to communicate the contents of this jury note to either defendant or his counsel, thereby violating defendant's constitutional rights.
154 AD2d at 217 (emphasis added).
Thus, the grounds argued on appeal had been framed quite differently from the grounds argued on the motion. On appeal defendant claimed that his attorney had, in fact, requested a hearing and argued that the trial court erred in failing to honor that request. While on the motion he claimed that defense counsel had not requested a hearing because, defendant argued, the trial court erred in failing to disclose the content of the note. Nonetheless, it was clear that in both proceedings the underlying error asserted as a ground for vacatur was the "allegedly improper denial of a hearing with respect to jury problems during deliberation." Id. at 221. Accordingly, on the People's appeal from the ruling on the post-conviction motion the Appellate Division reversed and reinstated the judgment of conviction, inter alia, holding that the motion should have been denied under C.P.L. § 440.10 (2) (a). Id. Despite the obvious differences in the language used to frame the grounds in the two proceedings the Appellate Division said that the scenario contemplated in the summary denial provision of section 440.10 (2) (a) "is precisely the situation present here." Id. The same is true for the instant application.
At the hearing on the C.P.L. 440.10 motion defendant's trial attorney testified that had he seen the note in question during jury deliberations he would have requested a hearing to determine the appropriate remedy. 154 AD2d at 220.
In Point I of his appeal defendant argued that his waiver of his right to appeal was invalid due to the allegedly equivocal nature of this Court's questions and his responses thereto, and because he was suffering from PTSD at the time of his plea allocution. ( See People's Exhibit 7 at 7, 9 and 13). He claimed that his purported waiver was not given knowingly, intelligently and voluntarily because, as a result of these infirmities, he responded to the Court's questions "without understanding the significance of his answers." ( Id. at 9). In other words, on appeal one of the underlying flaws defendant asserted as a ground to vacate the waiver of his right to appeal was that PTSD rendered him incapable of understanding the proceeding during which he waived that right.
Defendant also argued, in Point II of his appeal, that the sentence imposed was harsh and excessive because this was his first felony conviction, because he suffered from PTSD, because he had not personally bound Ms. Briggs and her children defendant contended that this had been done by his accomplice and because he was addicted to heroin. ( See People's Exhibit 7 at 15).
On the instant motion defendant contends that a "mental disease or defect," rendered him incapable of understanding the plea proceedings as a whole. However, the "mental disease or defect" he now complains of is the very same PTSD which he asserted on appeal. Furthermore, defendant's waiver of the specific right to appeal was merely a part of the same plea proceedings during which defendant waived the full panoply of rights, which induced this Court to accept his guilty plea. Nor does defendant contend that he was any more or less competent or capable of understanding during one part of the allocution than another. Thus, the underlying flaw which defendant now asserts as a ground to vacate the judgment of conviction on the instant motion is that the same PTSD rendered him incapable of understanding more of the same plea proceedings, i.e., it is discernibly the same underlying flaw he asserted as a ground for vacatur on appeal.
The Appellate Division denied defendant's appeal and affirmed the judgment of conviction without opinion. People v. Alexander, 8 AD3d 1131. The decision of an appellate court which affirms a judgment of conviction without opinion constitutes a determination on the merits of the claims raised on the appeal within the meaning of C.P.L. § 440.10 (2) (a). See People v. Saunders, 301 AD2d 869, 870 (3rd Dep't 2003); People v. Skinner, 154 AD2d 216; People v. Kelly, 110 AD2d 856 (2nd Dep't 1985); c.f. Jones v. Miller, ___ F. Supp. 2d ___, 2004WL1416589 at 9 (S.D.NY) (appellate court's decision addressing defendant-appellant's claim in an "alternative holding" constituted a determination on the merits). Therefore, the Appellate Division's decision constituted a determination on the merits of defendant's claim that PTSD rendered him incapable of understanding the plea proceedings. Regardless of any disparity from the language used to frame the grounds argued on appeal, defendant's attempt to assert the same underlying flaw as grounds to vacate the judgment of conviction on the instant motion must be denied under C.P.L. § 440.10 (2) (a). People v. Skinner, 154 AD2d 216.
Even assuming, arguendo, that the Appellate Division's decision did not constitute a determination on the merits of the validity of defendant's waiver of his rights other than his right to appeal, the instant motion must be denied nevertheless. The diagnosis of PTSD was contained in the pre-sentence report, which this Court reviewed prior to imposing sentence. Clearly, therefore, sufficient facts appeared on the record to have permitted adequate appellate review of defendant's current contention that as a consequence of PTSD he was incapable of understanding the plea proceedings. Indeed, defendant himself has appended a copy of the pre-sentence report as an exhibit to his affidavit in support of this motion. ( See Defendant's Exhibit B). Consequently, there is unquestioned documentary proof that the instant motion must be summarily denied for defendant's unjustifiable failure to raise the issue on appeal. C.P.L. §§ 440.10 (2) (c) and 440.30 (2).
Furthermore, even were the Court not compelled to deny the motion summarily under C.P.L. § 440.10 (2), it would do so on the merits without a hearing since defendant's claim that PTSD prevented him from understanding the plea proceedings "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." C.P.L. § 440.30 (4) (b). A defendant seeking to vacate a judgment of conviction has the burden of coming forward with allegations sufficient to create an issue of fact. See People v. Session, 34 NY2d 254, 255-256 (1974). Mere conclusory allegations of ultimate facts will not suffice. The movant must provide the Court with supporting evidentiary facts. See People v. Session, 34 NY2d at 256; People v. Baptiste, 306 AD2d 562, 569 (3rd Dep't 2003). Defendant has failed to satisfy his burden.
Defendant has submitted no affidavits other than his own in support of the instant application. Defendant has submitted copies of reports regarding interviews and mental health examinations which indicate that he has suffered from PTSD and depression, and that he has a history of drug and alcohol dependence. None of his submissions, however, support defendant's conclusory allegations that as a consequence of PTSD he was incompetent at the time of, or otherwise incapable of understanding, the plea proceedings. Indeed, many of the statements and conclusions contained in these submissions tend to undermine, rather than substantiate, defendant's claim. In sum, defendant's moving papers are devoid of any sworn allegations substantiating or tending to substantiate all the essential facts upon which his claim, that he was incompetent or otherwise incapable of understanding the plea proceedings, is based. Therefore, his motion to vacate the judgment of conviction is denied without a hearing. C.P.L. § 440.30 (4) (b); see also People v. Elliott, 187 AD2d 666, 667 (2nd Dep't 1992) ("hearing was unnecessary since ` no substantive basis exists to support a reasonable belief that the defendant was in any way incapacitated at the time in question'" [quoting People v. Buckley, 139 AD2d 589]).
For example, while confirming the PTSD diagnosis documents from Riker's Island indicate that as of December 2002 defendant did not suffer from impaired judgment or loosening of association ( see Defendant's Exhibit A) and documents from the Central New York Psychiatric Center indicate that in January 2004 defendant was "well-oriented," with an intact memory, average intelligence, and adequate insight and judgment ( see Defendant's Exhibit C). Further, according to the pre-sentence report, defendant admitted his guilt to the Department of Probation on the very day he entered his plea ( see Defendant's Exhibit B), and this admission has been confirmed by defense counsel whose affirmation on its face also refutes defendant's instant claim that he was incapable of understanding the plea proceedings ( see People's Exhibit 1). As a whole these submissions tend to establish that throughout the period beginning at least six months prior to the plea proceedings, and continuing until at least six months afterward, defendant was both mentally competent and fully capable of understanding.
Finally, to the extent that he claims to have been denied the effective assistance of counsel due to his attorney's failure to apprise the Court that he suffered from PTSD at the time of the plea proceedings, defendant's motion to vacate the judgment of conviction is denied without a hearing because the moving papers do not allege a ground constituting a legal basis for the motion; in other words, defendant's claim is meritless. C.P.L. § 440.30 (4) (a). There is a strong presumption of competent representation by counsel. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065 (1984). In order to succeed on an ineffective assistance claim and overcome this presumption, a defendant must establish that he was denied meaningful representation and demonstrate a reasonable probability that, but for his attorney's nonfeasance, the outcome would have been different. People v. Diaz, 157 AD2d 569 (1st Dep't 1990) (citing Strickland v. Washington); see also People v. Mackenzie, 233 AD2d 101 (1st Dep't 1996). Defendant has done neither herein.
It cannot be said that informing the Court that defendant had been diagnosed with PTSD would have altered the outcome of the plea proceedings. This Court's searching voir dire during the plea allocution was complete and thorough. It was intended to and did, among other things, reveal the general state of defendant's mental health, as well as his specific awareness and understanding of the proceedings. Defendant was given an open ended opportunity to ask any question and express any lack of understanding he might have had. Defendant's responses to the Court's inquiries were appropriate, oriented and informed, and did not provide any basis whatsoever for the Court to question his mental competence or his ability to understand. To the contrary, the apparent clearheadedness of defendant's responses, as well as the fact that he did not ask the Court or his counsel to repeat, rephrase or re-explain the questions put to him, factored into the Court's determination that defendant was competent and understood fully the significance of the proceedings. Nor do any of defendant's submissions on the instant motion show or tend to show that a diagnosis of PTSD is synonymous with either mental incompetence or an inability to understand, such that the mere mention of PTSD should have triggered a more plenary inquiry beyond that which the Court actually conducted. Therefore, the Court's determination, which finds ample support in the record, would have been the same regardless of whether it had been informed in greater detail as to defendant's PTSD. C.f. People v. Poquee, 9 AD3d 781 (3d Dep't 2004) (a criminal defendant is presumed to be competent).
In these circumstances no hearing is required to dispose of the instant motion since even accepting as fact defendant's allegations that his attorney failed to apprise the Court of the PTSD diagnosis, he was not thereby deprived of his right to the effective assistance of counsel. See People v. Edison, 192 AD2d 789, 790 (3rd Dep't 1993) (counsel's failure "to argue that defendant's Alzheimer's disease rendered his guilty plea ineffectual [did not constitute ineffective assistance since. . . . d]efendant's conclusory allegations that he was not totally aware of the proceedings . . . are belied by an examination of the record"); People v. Leventis, 29 AD2d 924 (1st Dep't 1968) (motion for writ of error coram nobis properly denied without a hearing since "the record indicates that the mental state of the defendant was manifestly known to the court [in whose] informed judgment . . . the defendant . . . was competent").
In his Affidavit in Reply defendant attempted to raise for the first time the distinct and additional claim that he was denied the effective assistance of counsel due to his attorney's "failure to ask for a competency hearing." (Defendant's Affidavit in Reply at 3). There is no provision in the statute under which defendant's motion was interposed requiring the submission of reply affidavits, nor does it afford a movant any right to do so. See People v. Calhoun, 2 Misc 3d 1009(A), 2003WL23407518 at 2 (Oswego County Ct.) (denying application for assignment of counsel to submit reply affidavit on C.P.L. § 440.20 motion to set aside sentence). Even where permitted, "the function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion ( citations omitted)." Dannasch v. Bifulco, 184 AD2d 415, 417 (1st Dep't 1992). Thus, it would have been well within the realm of the Court's sound discretion either to have denied defendant permission to submit reply papers at all or to have disregarded the additional claim improperly asserted therein.
Moreover, even had this additional claim been properly raised it would be denied without a hearing under C.P.L. § 440.30 (4) (a), for defendant's failure to demonstrate a reasonable probability that but for his attorney's failure to ask for a competency hearing the outcome would have been different. People v. Diaz, supra. As discussed at length above, it is apparent from the record that in light of the Court's inquiries and defendant's responses during the plea proceedings there was no reason for the Court to grant such a request. See People v. Medina, 249 AD2d 694 (3rd Dep't 1998) (record of plea proceedings established that County Court's failure to order mental competency examination prior to accepting guilty plea was not in error). Thus, the outcome would not have been different.
Conclusion
Generally, a valid guilty plea denotes the end of a criminal proceeding, not a gateway to further litigation ( see People v. Keizer, 100 NY2d 114; People v. Alexander, 97 NY2d 9), particularly where, as here, the right to appeal has been waived as part of the bargain to induce a court to accept the plea ( see People v. Seaberg, 74 NY2d 1 ["such waivers advance (public) interest, for the State's legitimate interest in finality extends to the sentence itself and to holding defendants to bargains they have made."]). Since it was entered knowingly, voluntarily and intelligently, defendant's plea of guilty, which this Court accepted in full satisfaction of the above-referenced indictment, was indisputably valid. See Peoplev Fiunefreddo, 82 NY2d 536 (1993).
Despite having waived the right to do so, however, defendant chose to pursue an appeal, and now seeks to attain through a post-conviction motion that relief which he was already denied. But C.P.L. article 440 is not an adjunct to the appeal process. See People v. Saunders, 301 AD2d at 870 ( and cases cited therein). Nor has defendant proffered any lawful reason why the judgment of conviction entered upon his plea should now be vacated. Accordingly, for all of the foregoing reasons, defendant's motion to vacate his judgment of conviction is denied in its entirety.
The foregoing constitutes the decision and order of the Court.