Opinion
Indictment 18-0813
07-01-2019
THE PEOPLE OF THE STATE OF NEW YORK v. RAYMOND HARDY, Defendant.
ANTHONY A. SCARPINO, JR. District Attorney, Westchester County Attention: VIRGINIA A. MARCIANO Assistant District Attorney ANTHONY MATTESI, ESQ.
Unpublished Opinion
ANTHONY A. SCARPINO, JR.
District Attorney, Westchester County
Attention: VIRGINIA A. MARCIANO Assistant District Attorney
ANTHONY MATTESI, ESQ.
DECISION & ORDER
HON. BARRY E. WARHIT, JUSTICE
Raymond Hardy ("Defendant") moves to withdraw his previously entered pleas of guilty to two counts of promoting prison contraband in the first degree. The People oppose the relief sought in its entirety. In contemplation of this motion, this Court read and considered the following papers:
Notice of Motion, Affirmation in Support of Anthony Mattesi, Esq. and Annexed Exhibit A (Transcript of the Plea Proceeding, January 24, 2019); Affirmation in Opposition of ADA Virginia A. Marciano and Memorandum of Law.
Relevant Procedural Background
Defendant is charged under the within indictment with three counts of promoting prison contraband in the first degree and three counts of criminal possession of a controlled substance in the seventh degree. In connection with these charges, Defendant applied to participate in the specialized "drug court" (Affirmation in Support of Anthony Mattesi, Esq., Exhibit A, Transcript of the Plea Proceeding, January 24, 2019 ("Plea Minutes"); pp, 2-4). On January 24, 2019 Defendant appeared before this Court in the Trial Assignment Part ("TAP") personally and by Russell Smith, Esq. As of this date his counsel had been verbally informed that Defendant had not been accepted to "drug court" but was awaiting receipt of written confirmation of this determination (Id.). This Court informed Defendant he could await said written decision, accept a plea deal under which he would serve the minimum permissible sentence consistent with the charge of promoting prison contraband in the first degree and his status as a predicate felon or proceed to trial (Id., pp. 4-8). The Court specifically advised Defendant: "I'm telling you, I'm sending you to trial. There will not be a plea in the trial part because . .. of you turn it down, it's off the table" (Id., p. 7, lines 19-21). In light of the fact that Defendant could face a significantly longer prison sentence if convicted after trial, the Court encouraged Defendant to give serious consideration to the plea offer and gave the matter a second call in order to give Defendant the opportunity to discuss his options with counsel (Id., p. 8, lines 1-5 and p. 9, lines 5-13).
Upon the matter being recalled Defendant's then counsel informed that if the Court was willing to accommodate Defendant's request to surrender after he put his affairs in order, Defendant wished to avail himself of the negotiated plea deal under which, in exchange for pleas of guilty to two counts of promoting prison contraband in the first degree, D felonies, Defendant would be sentenced to an indeterminate prison sentence of 2-4 years assuming he returned to Court as directed (Id., pp. 10-12).
Based upon this representation the Court placed Defendant under oath and, after insuring his fluency with the English language, had Defendant confirm his desire to enter pleas of guilty to two counts of promoting prison contraband (Id., p. 12, lines 15-25 and p. 13, lines 1-3. While under oath during the plea voir dire Defendant specifically acknowledged he had been given ample time to confer with counsel, that his attorney had answered all of his questions and achieved a result that, in light of everything Defendant was facing, was good (Id. at p. 13, lines 4-13). Within the context of the instant application it is particularly relevant that this Court specifically advised Defendant: "I don't want an application from you later on that you want your plea back and your blaming Mr. Smith. Can I rely upon your statement, made under oath, that you're fully satisfied with [your lawyer's] work?" [Id., p. 13, lines 14-18). Defendant replied in the affirmative (Id. at p. 13, line 19).
The Court proceeded with the allocution. Defendant responded in the negative to an inquiry concerning whether he had used any drugs, alcohol or medication which was affecting his ability to understand the day's court proceedings (Id., at p. 13, lines 2-23). Importantly, the Court reviewed the Constitutional and other rights Defendant would be relinquishing by entering pleas of guilty. While under oath, Defendant specifically acknowledged he understood he was giving up his rights to remain silent, to have a trial and to require the People to prove each and every element of each crime charged beyond a reasonable doubt (Id. at p. 13, lines 24-25 and p. 14, lines 1-6). Defendant also unambiguously expressed that he understood that by pleading guilty he was absolving the People of their obligation to prove the charges and forfeiting his rights to have witnesses called against him, to present witnesses on his own behalf and to alternatively testify on his own behalf or remain silent. (Id., p. 14, lines 7-25 and p. 15, lines 1-6). Additionally, Defendant indicated a clear understanding that his plea of guilty would result in his being convicted of the crime or crimes of promoting prison contraband in the first degree and sentenced in accord with the negotiated plea deal (see, Id. at p. 15, lines 6-24 and p. 16, lines 1-17).
Contrary to Defendant's present claim of duress, while under oath during the plea voir dire he categorically denied anyone had made promises to him or had threatened him in any way to get him to plead guilty (Id. at p. 16, lines 18-25). Significantly, Defendant explicitly admitted having brought contraband into the jail on two distinct occasions (Id. at p. 17, lines 1-5 and pp. 22-23). Additionally relevant to Defendant's present application, this Court plainly advised Defendant: "you've told me that you're not innocent. You told me, in fact, you're guilty ... [a]nd you're happy with your lawyer... I don't want to read in the presentence report that you're claiming innocence and your blaming [your lawyer]" (Id. at p. 18, lines 9-12).
It bears note that, as part of its plea voir dire, this Court highlighted that in addition to giving up trial rights by accepting a negotiated plea deal Defendant was also giving up separate appellate rights (Id., at p. 19, lines21-25 and p. 20, lines 1-23. In particular, the Court explained the purpose and function of the appellate court and informed Defendant that, as a condition of the negotiated plea deal, to the extent permitted by law, he would be required to waive his appellate rights (Id.). After acknowledging he had spoken about this waiver with counsel and indicating he understood his appellate rights, Defendant freely and voluntarily waived his right to appeal (Id.). Defendant specifically declared himself to be a citizen of the United States and thereby denied the immigration consequences of his pleas of guilty were applicable to him (Id. at p. 21, lines 4-24). Moreover, when directly asked during the plea allocution, Defendant confirmed he had understood the plea proceeding and denied having any questions for the Court (Id. at p. 22, lines 5-7 and p. 24, lines 23-24).
Based upon Defendant's sworn admission that, while confined to the Westchester County jail he knowingly and unlawfully made, obtained or possessed dangerous contraband-- namely 4 glassines of heroin on April 14, 2018 and fifteen (15) glassines of heroin on June 2, 2018-- this Court accepted Defendant's pleas of guilty as having been made freely, knowingly and voluntarily (Id. at p. 22-23). The Court also accepted Defendant's acknowledgment of his status as a predicate felon based upon his October 25, 2017 conviction for criminal possession of a controlled substance in the fifth degree (Id. at p. 23, lines 22-25 and p, 24, lines 1-20).
The Court set February 28, 2019 as the date on which Defendant was due to surrender and April 26, 2019 as the date he was to be sentenced (Id., p. 25, lines 5-8). However, Defendant's previous counsel was relieved and present counsel assigned when Defendant indicated an intention to withdraw his previously entered pleas of guilty.
On May 23, 2019 Defendant filed the within counseled motion seeking to withdraw his plea of guilty on grounds that his pleas were procured by duress and in violation of his Constitutional rights (Affirmation in Support of Anthony Mattesi ("Mattesi Affirmation"), If 1 and pp. 3-6). By Affirmation in Opposition and Memorandum of Law, filed June 10, 2019, the People have opposed Defendant's application in its entirety.
Findings of Law
Pleas of guilty are intended to signify the end of a criminal case and are not anticipated to serve as a "gateway" to further litigation (see, People v. Hansen, 95 N.Y.2d 227, 230 [2000]; and see, People v Taylor, 65 N.Y.2d 1, 5 [1985]). Although the statute sets forth a procedure by which a defendant may move to withdraw previously entered pleas of guilt, it is well settled that pleas which have been made knowingly, voluntarily and intelligently should be upheld (see, Elmendorf, 45 A.D.3d 858, 859 [2d Dept. 2007]; and see, Fiumefreddo, 82 N.Y.2d 536). Furthermore, courts are to sparingly permit defendants to withdraw their pleas and only in cases where there is evidence of innocence or where fraud or mistake played a role in inducing the plea (CPL § 220.60[3]; and see, People v. Alexander, 97 N.Y.2d 482 [2002]; Elmendorf, 45 A.D.3d at 859; People v. Smith, 54 A.D.3d 879 [2d Dept. 2008]; and see, People v Pillich, 48 A.D.3d 1061 [2008]).
In determining whether to exercise its discretion to permit a defendant to withdraw a plea or pleas of guilty a court is "entitled to rely on the record [of the plea allocution] to ascertain whether any promises, representations, implications and the like were made to the defendant" and induced his plea of guilty" (People v. Ramos, 65 N.Y.2d 640, 642 [1984](internal citations omitted)). Applying the law to this case, it is significant that the plea minutes conclusively establish that Defendant admitted his guilt freely, knowingly and voluntarily after the Court made a proper and searching inquiry into his understanding of the proceedings and the rights he was forfeiting by entering a plea of guilty (see, Alexander, 97 N.Y.2d 482; Elmendorf, 45 A.D.3d at 859; Smith, 54 A.D.3d 879; and see, Pillich, 48 A.D.3d 1061).
Further, in contravention of his present claims, during the plea allocution Defendant denied anyone other than the Court had made a promise to him or that he had been threatened in anyway (Plea Minutes, p. 16, lines 20-25). Additionally, Defendant's claims that he was pressured to accept the plea and did not have enough time to confer with counsel about his decision are debunked by the record. The transcript renders clear that the Court permitted a break in the proceeding and recalled the case for the specific purpose of giving Defendant the opportunity to discuss the plea with his counsel (Id., p.8, lines 2-4, p. 9, lines 14-17). Additionally, Defendant explicitly acknowledged he had enough time to speak to counsel about the plea, that counsel had answered all of his questions and had achieved a "good result" for him (Id:, p. 13, lines 4-19). The allegations the defense presents in the instant motion that Defendant was "coerced and pressured by his attorney and the Judge to take a plea" are not only debunked by the transcript, they are self-serving and wholly unsupported by facts or explanation.
The fact that Defendant may have felt stressed or pressured at the time he entered his admissions of guilt does not form a basis to permit him to withdraw his plea (see, People v. Montgomery, 27 N.Y.2d 601 [1970]. Situational pressure created when a defendant must decide whether to enter a plea of guilty and accept a negotiated sentence or go to trial does not qualify as "undue pressure" (see, People v. Sparbanie, 158 A.D.3d 942, 944 [3d Dept. 2019]("situational pressure faced by defendants who are offered plea deals dies not undermine voluntariness of a guilty plea"); and see, People v. Merck, 242 A.D.2d 792 [3d Dept. 1997]). This is true regardless of whether, as is alleged in the present case, a defendant alleges his attorney was the source of the alleged pressure (see, People v. Mann, 32 A.D.3d 865 [2d Dept. 2006]; see also, People v. Manor, 27 N.Y.3d 1012, 1014 [2016]; and see, People v. Burdo, 1 A.D.3d 793, 794 [3d Dept. 2003]).
To the extent the within motion appears to raise a claim of ineffective assistance of counsel, it must be noted that counsel achieved a very favorable disposition for the within defendant. Defendant was permitted to enter pleas of guilty to only two of the six charges he faced under this indictment, was promised concurrent sentences and an additional misdemeanor charge pending in local court was covered; moreover, counsel convinced this Court to grant Defendant's request, to remain at liberty after entering his pleas of guilty (Plea Minutes, pp. 6-9). Nothing in the record demonstrates Defendant's plea was improvident, further, Defendant's contention that prior counsel "failed to investigate the circumstances of the alleged incident, did not interview potential witnesses, and did not employ the services of an investigator or an expert before advising Defendant to enter a plea of guilty" is self-serving and wholly unsupported by the record or by counsel's affirmation (see, Mattesi Affidavit, fl 22; cf., CPL § 440.10(2)). Regardless, "[a] defendant is not entitled to withdraw his plea merely because he discovers that his calculus misapprehended the quality of the State's case" (see, People v. Jones, 44 N.Y.2d 76, 81 [1978]; and see People v. Wright, 182 A.D.2d 849, 849-850 [2d Dept. 1992](denying a defendant's application to withdraw a plea of guilty upon a subsequent discovery that there was no fingerprint evidence linking him to the charged crime).
Accordingly, based upon the foregoing, it is an appropriate exercise of this Court's discretion to deny Defendant's application for return of his previously entered pleas of guilty without a hearing (see, People v. Hansen, 269 A.D.2d [2d Dept. 2000] citing People v Rosa, 239 A.D.2d 364 [2d Dept. 1997]); People v. Avery, 18 A.D.3d 244 [1st Dept. 2005]; People v. Sain, 261 A.D.2d 488, 489 [2d Dept. 1999] citing CPL § 220.60[3]).
The foregoing constitutes the opinion, decision and order of this Court.