Opinion
2009BX051112.
Decided March 18, 2010.
ANDRE ANDRADES, Defendant, pro se, Inmate No. 241-09-10952, Bronx, New York.
THE BRONX DEFENDERS, Attorneys for defendant, Bronx, New York, Attn: Jenay Nurse, Esq., A.D.A. ANDREW SHERWOOD, Office of the District Attorney, Bronx County, Bronx, New York.
By each of the above-referenced dockets defendant was charged with violating the provisions of an order of protection previously issued pursuant to section 530.12 of the Criminal Procedure Law. On August 28, 2009, defendant entered a plea of guilty before this Court (Part DV) to one count of criminal contempt in the second degree (P.L. § 215.50) in satisfaction of Docket No. 2009BX051112 and one count of criminal contempt in the second degree (P.L. § 215.50) in satisfaction of Docket No. 2009BX054529, in exchange for a promise that he would receive a sentence of one year incarceration on each docket, said sentences to run concurrently with each other. On September 23, 2009, this Court (Part T-23) sentenced defendant as promised to one year incarceration on Docket No. 2009BX051112 and one year incarceration on Docket No. 2009BX054529, said sentences to run concurrently with each other. On November 30, 2009, this Court received from the Supreme Court Clerk's Office, Bronx County (hereinafter, "Bronx Clerk"), defendant's pro se motion pursuant to C.P.L. § 220.60 to withdraw his guilty pleas. The People oppose defendant's motion.
The Court has reviewed the applicable law and the following documents: (1) defendant's undated pro se Notice Of Motion Withdrawal Off [ sic] Plea CPL § 220.60 (hereinafter, "NOM"); (2) defendant's Affidavit In Support Of Application For Withdrawal Of Plea, Pursuant To CPL § 220.60 dated September 8, 2009 (hereinafter, "Andrades Aff"); (3) defendant's Verification dated September 8, 2009; (4) defendant's Affidavit Of Service dated September 8, 2009 (hereinafter, "Service Aff"); (5) People's Affirmation In Opposition dated February 16, 2010 (hereinafter, "Aff Opp"); (6) People's Exhibit 1; and, (7) the official stenographic transcript of the minutes of the sentencing proceedings in this matter which took place before this Court on September 23, 2009 (hereinafter, "Sentence Minutes").
Upon consideration of the foregoing, and for the reasons that follow, defendant's motion is denied.
Factual Background
On August 28, 2009, before accepting defendant's guilty pleas, this Court conducted the following voir dire of defendant:
THE COURT: Okay. Thank you.
Are you Andre Andrades ?
THE DEFENDANT: Yeah.
THE COURT: Yes ?
THE DEFENDANT: Yes.
THE DEFENDANT, having been first duly sworn, testified as follows:
THE COURT: Mr. Andrades, your lawyer says on docket ending 112 you're pleading guilty to an A misdemeanor, criminal contempt. And on docket ending 5529 [ sic], you're pleading guilty to an A misdemeanor, criminal contempt. Is that what you're doing ?
THE DEFENDANT: Yes.
THE COURT: Have you had enough time to talk about the cases with your lawyer ?
THE DEFENDANT: Yes.
THE COURT: Did anybody force you, threaten you, or pressure you to plead guilty ?
THE DEFENDANT: No.
THE COURT: Are you satisfied with the services your lawyer has provided for you ?
THE DEFENDANT: Yes.
THE COURT: Do you realize when you plead on docket ending 112 you admit that you violated an order of protection issued pursuant to 530.12 . . . of the criminal procedure law by having contact with . . . when you were precluded from doing that ? That's what you're admitting on that case. Do you understand that, sir ?
THE DEFENDANT: Yes.
THE COURT: And is it true that you did that, sir ?
THE DEFENDANT: Yes.
THE COURT: And do you realize that when you plead guilty on the docket ending 529 you admit . . . you've violated an order of protection by — in violation of the terms of that order having contact with. . . . The second is on or about August 12th, 09 in the Bronx, and the other contact was . . . in the Bronx on or about . . . April 24th, 2009. So that's the time and place of the first incident, and also the time and place of the second incident. And that's what you're admitting by the plea. Do you understand that ?
THE DEFENDANT: Yes.
THE COURT: And is it true that you did that ?
THE DEFENDANT: Yes.
THE COURT: Do you know that you have the right to have a trial, the right to remain silent, the right to have your lawyer confront and cross-examine witnesses for you, the right to have the People prove you guilty beyond a reasonable doubt, and by pleading guilty now you're giving up all those rights ? Do you understand that ?
THE DEFENDANT: Yes.
(Official transcript of minutes of plea proceeding on August 28, 2009, a copy of which is annexed to the Aff Opp as Exhibit 1, at 6-8). The case was then adjourned to September 11, 2009, for sentencing ( see id. at 10), but was later rescheduled for September 23, 2009. On September 23, 2009, the following colloquy took place immediately prior to the pronouncement of sentence:
THE COURT: I read the probation report in which defendant denies his guilt. What did the defense want to say ?
MS. NURSE [defense counsel]: Your Honor, we've had an opportunity to speak with Mr. Andrades and after speaking with him, he does wish to go forward with his plea of guilty.
THE COURT: I see. Mr. Andrades, do you swear that the answers you're going to give now are the truth, the whole truth and nothing but the truth so help you God ?
THE DEFENDANT: Yes.
THE COURT: Mr. Andrades, do you recall that in another courtroom on August 29th you plead guilty on the docket ending 112 to criminal contempt in the second degree and you plead guilty in [ sic] the docket ending 529 to a separate count of criminal contempt in the second degree, an A misdemeanor; do you remember that, sir ?
THE DEFENDANT: Yes.
THE COURT: And were you, in fact, guilty of those crimes ?
THE DEFENDANT: Yes.
THE COURT: So we can proceed to sentencing.
. . .
THE COURT: Sir, you want to say anything before I sentence you ?
THE DEFENDANT: If the complainant dropped the charges, why am I guilty ?
THE COURT: You have just admitted your [ sic] guilty under oath, sir. Talk to your lawyer.
(Defense counsel and defendant confer.)
. . .
MS. NURSE: Your Honor, we are ready to proceed.
THE COURT: Did you want to say anything else, sir ?
THE DEFENDANT: No.
(Sentence Minutes at 2-4). The Court then pronounced sentence. ( See id. at 4-5).
Although the NOM is undated, all of the papers which defendant submitted in support of his motion to withdraw his guilty pleas, and which were annexed to the NOM — i.e., the Andrades Aff, Verification, and Service Aff — are dated September 8, 2009. In the Service Aff defendant avers that on September 8, 2009, he mailed papers concerning the above-referenced dockets to the Bronx Clerk and to "District Attorney, Hon. _________ [ sic], 198 E. 161st St., Bronx, NY 10451." However, the papers which defendant alleges to have mailed are described in the Service Aff not as the NOM — which was annexed to the Service Aff delivered to the Bronx Clerk — but as "a Notice of Motion Releasing Defendant from Custody upon Failure of Timely Disposition of Felony Complaint and supporting affidavits" — which documents were not annexed to the Service Aff delivered to the Bronx Clerk.
None of the papers annexed to the Service Aff bear a date-stamp indicating when they were received by the Bronx Clerk, but the envelope in which they were delivered is postmarked September 14, 2009. The papers, including the envelope, were received by this Court from the Bronx Clerk on November 30, 2009. The People allege that "[o]n September 15, 2009, the defendant filed and served a formal motion to withdraw the defendant's guilty plea pursuant to C.P.L. § 220.60, which was not received by the District Attorney's Office until January 15, 2010." (Aff Opp at 3).
Discussion
The Court will not consider defendant's pro se motion to withdraw his guilty pleas because at the time he submitted the motion he was represented by counsel. "A defendant who is represented by counsel cannot, as of right, make motions,' and the decision whether to consider a pro se motion when the defendant is represented by counsel lies within the sound discretion of the trial court ( People v Rodriguez, 95 NY2d 497, 501)." People v Lockett , 1 AD3d 932 , 933 (4th Dep't 2003) lv denied 1 N.Y.3d 630 (2004). Defendant was represented by counsel at all times since the date of his arraignment on the above-referenced dockets — including the period from August 28, 2009, the date of his guilty pleas, to September 23, 2009, the date he was sentenced on those pleas. And defendant does not allege that he wanted to withdraw his guilty pleas because of anything his attorney did or failed to do, or ask that a new attorney be assigned to represent him. Cf., e.g. , People v McKoy , 60 AD3d 1374 , 1374-1375 (4th Dep't 2009) (affirming summary denial of pro se motion to withdraw guilty plea without substituting counsel where record did "not support the contention of defendant that defense counsel took a position adverse to that of defendant during argument of his pro se motion") lv denied 12 NY3d 856 (2009); People v Davis, 161 AD2d 787, 788 (2nd Dep't 1990) (affirming trial court's decision not to substitute counsel where defendant made a pro se plea withdrawal motion "based, inter alia, on a conclusory unsubstantiated claim of ineffective assistance of counsel") appeal denied 76 NY2d 939 (1990). Thus, had the Court been aware of defendant's pro se motion before September 23, 2009, it would immediately have made certain that defense counsel knew of the motion and inquired if she intended to adopt it or file supplemental papers in support. Had counsel refused to adopt or supplement the motion, the Court would have informed defendant on the record in open court that his pro se papers were not being considered; obviously, had counsel adopted or supplemented defendant's papers, there would have been no pro se motion for the Court to consider. Consequently, even assuming, as the People concede ( see quote from Aff Opp at 3, supra), that defendant's pro se motion was timely under C.P.L. § 220.60(3) because it was made "before the imposition of sentence," this Court will not consider it because at the time he submitted the motion defendant was represented by counsel.
In fact, while the People allege that defendant's motion was made on September 15, 2009 ( see Aff Opp at 3), the Service Aff evinces that the motion was actually made on September 8, 2009, because "a motion is made when the moving party serves it[,] it is permissible to serve by mail"( People v Price , 56 AD3d 366 , 369 [1st Dep't 2008] lv denied 12 NY3d 786 [2009]), and "service by mail [is] complete upon mailing" (C.P.L.R. §§ 2103[b][2]).
Even assuming arguendo that defendant's pro se submissions constituted a viable motion entitled to judicial consideration, that motion was abandoned on September 23, 2009. A pro se motion filed by a defendant who is represented by counsel is deemed to have been abandoned where it is no longer possible to grant the relief sought therein because the defendant "fail[ed] to call the court's attention to the fact that [the motion] remained unresolved." People v Berry , 15 AD3d 233 , 234 (1st Dep't 2005) (holding that a defendant who had been convicted after trial had abandoned his pro se suppression motion) lv denied 4 NY3d 883 (2005). This Court was not aware of the instant motion until November 30, 2009, the People allege that they were not aware of it until January, 15, 2010, and there is no allegation or indication in the record that defense counsel was ever aware that defendant made a pro se motion. Thus, when defendant appeared before this Court on September 23, 2009, he was apparently the only person in the courtroom who was aware that he had made a plea withdrawal motion and that his motion had not been resolved. Despite having ample opportunity to bring that situation to the attention of the Court or his attorney before sentence was pronounced — after which he could not withdraw his plea ( see C.P.L. § 220.60) — defendant did not do so. Therefore, his motion was abandoned when sentence was imposed and it was no longer possible to grant the relief defendant sought. See People v Santos , 14 AD3d 316 (1st Dep't 2005) (holding that defendant abandoned pro se motion for assignment of new counsel "by failing to call the court's attention to the fact that the motion remained unresolved, having had the opportunity to do so at the subsequent guilty plea and sentencing proceedings") lv denied 4 NY3d 856 (2005).
Finally, had the Court decided to consider and defendant had not abandoned his pro se motion, it would be summarily denied because it is unsupported by allegations of substantive facts and facially without merit, and because the record establishes that defendant's plea was entered knowingly, intelligently, and voluntarily. A motion to withdraw a guilty plea "will not be granted merely for the asking." People v Alexander, 97 NY2d 482, 485 (2002). There must be more than bare unsubstantiated protestations of innocence or conclusory or self-serving allegations that the plea was the product of a misunderstanding of its consequences. See People v Cummings , 53 AD3d 587 (2nd Dep't 2008) (holding that "[t]he defendant's generalized and unsubstantiated claim of innocence . . . was not sufficient to warrant the vacatur of the plea of guilty"); People v Braun, 167 AD2d 164, 165 (1st Dep't 1990) (holding that the defendant's "bare allegations of innocence, coercion and ineffective representation . . . would not require granting his motion to withdraw the guilty plea"). And a motion to withdraw a guilty plea may be denied without an evidentiary hearing where it is "facially without merit" ( see People v DeFabritis, 296 AD2d 664, 665 [3rd Dep't 2002] [quoting People v Rudenko, 243 AD2d 588, 588] lv denied 99 N.Y2d 557), or where it lacks allegations of substantive facts supporting the grounds raised ( see People v Cuadrado, 47 AD3d 437 [1st Dep't 2008] lv denied 10 NY3d 809).
Defendant's motion is unsupported by allegations of substantive facts and facially without merit. Indeed, the only allegation of a fact specific to defendant's situation among the pre-printed, boilerplate language in his affidavit is the handwritten statement that "[t]he complaint [ sic] witness no longer wishes to pursue this action." (Andrades Aff at 2). Even if true, that would not be a ground for withdrawal of defendant's guilty pleas, and in any event, defendant's assertion of the complainant's alleged reluctance "to pursue this action" ( id.) was raised by defendant, and addressed by the Court and defendant's attorney on September 23, 2009, before sentence was imposed ( see Sentence Minutes at 3, supra). Nor would there be any substantive facts in dispute on the motion the resolution of which would require an evidentiary hearing. Rather, the record of the plea and sentence proceedings establishes that defendant entered his guilty pleas under oath, knowingly, intelligently and voluntarily, and that he did so with the effective assistance counsel. Therefore, defendant's pro se motion to withdraw his pleas, were the Court to consider it, would be summarily denied. See People v Ramos, 63 NY2d 640, 642-643 (1984) (holding that "the judge to whom the motion to vacate is addressed should be entitled to rely on the record before him in order to insure that guilty pleas are accorded finality whenever possible"); People v Cuadrado, 47 AD3d at 437 ("The plea minutes establish the voluntariness of the plea.")
Accordingly, for the foregoing reasons, defendant's pro se motion to withdraw his pleas of guilty to one count of criminal contempt in the second degree in satisfaction of Docket No. 2009BX051112 and one count of criminal contempt in the second degree in satisfaction of Docket No. 2009BX054529 is denied.
The foregoing constitutes the decision and order of the Court.