Opinion
No. 02923–08.
2012-01-27
The PEOPLE of the State of New York, v. Mark JURGINS, Defendant.
D.C.Code § 22–2801. Under D.C. law, a robbery is committed when anything of value is taken in either of three ways: (1) “by force or violence,” against resistance; 7 or (2) “by force or violence,” by sudden or stealthy seizure or snatching; 8 or (3) by putting in fear. United States v. Mathis, 963 F.2d 399, 408 (D.C.Cir.1992) (force or violence elements met by “against resistance” or by “sudden or stealthy seizure or snatching”); Noaks v. United States, 486 A.2d 1177 (D.C.Cir.1985)(under D.C. law, robbery can be committed in several different ways); People v.. Pixley, 692 A.2d 438, 439 (D.C. Ct. Appeals 1997); Clifton, 28 A.D.2d at 709 (pursuant to Goldman analysis, D.C. robbery statute renders criminal several acts, some of which would be felonies and some misdemeanors in New York). [emphasis added]. See Information, attached as Exhibit 1 to the Affirmation of Diego Hernandez. Defendant was charged with attempting to commit robbery under the first and third prongs of the D.C. robbery statute.
Susan E. Baumgartner, Esq., Bronx County District Attorney's Office, Bronx, Lisa A. Packard, Esq., Robert S. Dean, Esq., Center for Appellate Litigation, New York City, Attorneys for Defendant.
COLLEEN DUFFY, J.
On September 22, 2011, Defendant Mark Jurgins filed this motion, pursuant to CPL § 440.20(1), in which he seeks an order setting aside his sentence and re-sentencing him, on the grounds that he was unlawfully sentenced as a second felony offender. Defendant also contends that his trial counsel was ineffective for failing to investigate and challenge the use of Defendant's October 2000 conviction in Washington, D.C., for Attempt to Commit Robbery, D.C.Code § 22–2802, as a predicate to enhance Defendant's sentence.
For the reasons set forth below, Defendant's motion is denied in its entirety.
PROCEDURAL HISTORY
On May 21, 2001, Defendant was indicted on twelve charges, including one count of Robbery in the First Degree, PL 160.15(3); two counts of Robbery in the Second Degree, PL 160.15(1) and (2)(a); one count of Robbery in the Third Degree, PL 160.05; one count of Grand Larceny in the Fourth Degree, PL 155.30(5); one count of Assault in the First Degree, PL 120.10(1); and three counts of Assault in the Second Degree, PL 120.05(1) and (2) and (6), as well as several misdemeanors, in connection with an incident, on or about May 1, 2008, in which Defendant is charged with having assaulted a livery cab driver in his vehicle, having wielded a knife, and having robbed the cabdriver.
On April 15, 2010, while the jury selection process for Defendant's trial was underway, Defendant pleaded guilty, pursuant to a negotiated plea agreement, to one count of Robbery in the First Degree, a class B felony, to satisfy all of the charges pending against him. The Court informed Defendant that, if he adhered to certain conditions that were articulated by the Court, one of which required the Defendant to cooperate with the Department of Probation, the Court would sentence Defendant to a determinate sentence of eleven years in state prison, and five years of post-release supervision, a permanent order of protection and certain mandatory surcharges.
The Court informed Defendant that “cooperate” in that context meant that Defendant could not swear to certain facts under oath in court and then deny those same facts to Probation during his pre-sentence interview. See Transcript of Proceedings, April 15, 2010 (“Plea Transcript”), pp. 13–17.
This sentence was comprised of an eight year sentence plus three additional years because the victim was operating a “for hire” vehicle at the time of the crime. See P.L. § 60.07.
On April 29, 2010, Defendant moved to have the Bronx Defenders relieved as counsel and sought to have new counsel appointed. The Court granted Defendant's request; defense counsel was relieved and a new attorney, Michael Torres, Esq., was appointed to represent Defendant.
The Court also informed Defendant that, if he did not comply with the articulated conditions, the Court would then sentence Defendant to 25 years. Plea Transcript at 14. Defendant acknowledged on the record that he understood those conditions. Id.
At the plea proceeding on April 15, 2010, Defendant was adjudicated a second felony offender as result of a conviction incurred by Defendant in Washington, D.C., on October 24, 2000, for Attempt to Commit Robbery (the “D.C. conviction”).
At the plea proceeding, the People had filed with the Court a “Second Felony Information,” which contends that Defendant had been convicted of Attempt to Commit Robbery in Washington, D.C., and that Defendant was sentenced to 14 to 42 months incarceration for that offense. Plea Transcript at 15–6. According to the People, Defendant's D.C. conviction constitutes a predicate felony for purposes of Penal Law § 70.06.
The Second Felony Information incorrectly lists “D.C. St 22–2801 (22–3803)” as the relevant statutes for purposes of the D.C. conviction for Attempt to Commit Robbery. In fact, in 2000, Defendant was convicted under D.C.Code § 22–2902 (“Attempt to Commit Robbery”). That section has now been renumbered as § 22–2802. The error in the statutory reference on the Second Felony Information has no bearing on the issue before the Court, as Defendant's conviction in D.C. was for Attempt to Commit Robbery in that district. Thus no prejudice Defendant has resulted from the error. People v. Burgess, 2008 N.Y. Slip Op. 33551U, *6 (Sup.Ct., Kings Co.2008)(defendant suffered no prejudice as result of clerical error in adjudicating him second felony offender); People v. Coffey, 124 A.D.2d 814, 815 (2d Dept.1986)(in case where defendant was improperly adjudicated second felony offender rather than second violent felony offender, no prejudice to defendant and no need to resentence).
References herein to the Attempt to Commit Robbery statute in Washington, D.C. will be to the current code number, § 22–2802.
On that same date, Defendant was informed that he had a right to challenge the Second Felony Information and that any failure to challenge the statement at that time was a waiver of that right. Defendant conferred with his attorney, then stated that he understood. Id. Defendant was advised that he could dispute the People's contention that Defendant is the person who was convicted of that out-of-state crime and challenge the constitutionality of that prior conviction. Id. at 15. In open court, Defendant admitted to being the person convicted of the D.C. crime and indicated that he waived his right to challenge the D.C. conviction as unconstitutional. Id. at 16. Defendant did not challenge the Second Felony Information or dispute in any way the People's contention that the D.C. conviction constituted a predicate felony. The Court then adjudicated Defendant a predicate felon. Id. at 16–17.
On June 14, 2010, Defendant filed a motion seeking to withdraw his guilty plea, contending that he is innocent of the charges and that his guilty plea was involuntary in that, at the time of the plea, he was under duress, had significant psychological stress due to his wife's ongoing cancer treatment, and had ineffective assistance of counsel. Defendant's motion to withdraw his plea was denied in its entirety. See People v. Jurgins, 28 Misc.3d 1206A (June 28, 2010).
On the date of sentencing, July 2, 2010, the Court determined that Defendant had violated one of the conditions of the sentence promise-specifically, Defendant, after having averred to facts that established Defendant's guilt for the crime of Robbery in the First Degree in Court on April 15, 2010, denied the same facts to Probation. Transcript of Proceeding, July 2, 2010, at 8–11. Noting that Defendant had not complied with the required conditions to obtain the lower sentence, the Court sentenced Defendant to a determinate sentence of 25 years incarceration in state prison, and five years of post-release supervision, issued a permanent order of protection on behalf of the Complainant as against Defendant, and imposed certain mandatory surcharges. Id. at 11.
Defendant has filed an appeal in this case, currently sub judice in the First Department. See People v. Jurgins, No. M–3661 (1st Dept.).
Thereafter, Defendant filed two more motions, both pro se. On August 6, 2010, Defendant sought transcripts of his sentencing in this case. The Court deemed Defendant's letter to be a pro se motion to obtain, without cost, a transcript of the sentence proceeding. On or about July 15, 2010, Defendant sought to have this Court set aside Defendant's sentence, pursuant to CPL § 440.20. Both motions were denied in their entirety.
On September 22, 2011, Defendant, represented by Robert S. Dean, Esq., and Lisa A. Packard, Esq., of the Center for Appellate Litigation, filed this motion seeking an order setting aside Defendant's sentence and re-sentencing Defendant. Defendant contends that he was improperly sentenced as a second felony offender because his D.C. conviction in 2000 does not qualify as a predicate felony for sentencing purposes under New York law. Defendant also contends that his trial counsel was ineffective for failing to investigate whether the D.C. conviction qualified as a predicate felony and for failing to challenge it.
RELEVANT ANALYSIS
“A second felony offender is a person ... who stands convicted of a felony ... after having previously been subjected to one or more predicate felony convictions ...” PL 70.06(1)(a). A prior out of state conviction is a “predicate felony conviction” if the conviction is “of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed.” PL § 70.06(1)(b).
As a general rule, when determining whether an out-of-state conviction qualifies as a predicate felony, a court typically compares the elements of the respective crimes as such are defined in the relevant foreign statute with those set forth in the New York penal law; the court does not examine the factual basis of the crimes alleged in conducting such comparative analysis for the purposes of determining whether the out-of-state crime qualifies as a predicate felony in New York. People v. Olah, 300 N.Y. 96, 98–99 (1949)(the “crime” is determined from the statute which created it and cannot be extended or enlarged by allegations in indictment or evidence at trial); People v. Muniz, 74 N.Y.2d 464, 468–69 (1989). This analysis, referred to herein as the Olah analysis, is the general rule courts follow.
Notwithstanding such Olah analysis, in cases where the foreign statute makes more than one act criminal, and some such acts would constitute a felony in New York, while others would not, the court must look beyond the elements of the foreign statute and examine the accusatory instrument with which a defendant was charged in the foreign state. People ex rel. Goldman v. Denno, 9 N.Y.2d 138, 140 (1960); People v. Gonzalez, 61 N.Y.2d 586, 590–91 (1984); People ex rel. Gold v. Jackson, 5 N.Y.2d 243 (1959)(where Florida statute made both breaking into and out of building a felony while New York statute treated only breaking into building as felony, resort to Florida accusatory instrument would be allowed); see also People ex rel. Jones v. Martin, 7 A.D.2d 829, 829 (4th Dept.1958)(pre- Goldman, applying same analysis, court holds that examination of indictment in out-of-state matter is appropriate to determine whether DC robbery statute qualifies as predicate felony for New York sentencing purposes).
This analysis, referred to herein as the Goldman analysis, is the exception to the general rule.
Specifically, in such cases where the foreign statute delineates several different acts, a court must resort to the recitals in the accusatory instrument that describe the particular acts underlying the charge to isolate and identify the exact crime of which a defendant was accused in order to determine if the elements of that out-of-state crime are equivalent to the elements of the comparable New York felony. People v. Gonzalez, 61 N.Y.2d 586, 591 (1984); Gold, 5 N.Y.2d at 246 (operative facts in indictment may be referenced to determine whether defendant was accused of breaking into or out of a building); People v. Ricketts, 38 AD3d 291, 292 (1st Dept.)(where federal statute provides alternative means for committing embezzlement offense, court considers the accusatory instrument to determine whether defendant was convicted of offense which would be a felony in New York), app. denied,8 NY3d 989 (2007).
As set forth herein, in this case, the Goldman analysis of the D.C. statute and the comparable New York penal law is the appropriate analysis for this Court to conduct in determining whether Defendant's D.C. conviction constitutes a predicate felony under New York law. And, as noted further herein, the Court finds that it does.
CONCLUSIONS OF LAW
Pursuant to CPL § 440.20(1), a motion to set aside a sentence may be made at any time after the entry of a judgment. Upon motion of a defendant, the court in which the judgment was entered may set aside the sentence on the grounds that it was unauthorized, illegally imposed or otherwise invalid as a matter of law. CPL § 440.20(1).
In this case, the Court finds no merit to Defendant's contention that the sentence imposed by this Court is illegal in that he was improperly sentenced as a second felony offender. As set forth below, Defendant's contention that his D.C. conviction for Attempt to Commit Robbery does not qualify as a predicate felony conviction under New York's second felony offender statute is wrong. P.L. § 70 .06(1)(b)(i).
Accordingly, as set forth further below, Defendant's motion is denied. As an initial matter, the Court notes that Defendant waived any right he may have had to challenge the Court's determination that the D.C. conviction constitutes a predicate felony when he failed to make any such challenge on April 15, 2010, the date of the Court's adjudication of Defendant as a predicate felon, or July 2, 2010, the date of sentencing. Second, even if Defendant had not waived any right to challenge the issue, such challenge would be unavailing; Defendant's D.C. conviction qualifies as a predicate felony under New York law. Defendant's contention that his trial counsel was ineffective for failing to challenge his predicate felony adjudication at the time of his plea proceeding also is without merit.
I. Defendant Waived his Right to Challenge his Predicate Felony
Defendant is barred from challenging the validity of his status as a predicate felon at this time. Defendant had the opportunity to challenge the People's claim that his guilty plea to the offense at issue here constituted his second felony offense due to Defendant's D.C. conviction. By failing to challenge the issue at the time that he pleaded guilty, Defendant waived the right to challenge whether he was properly adjudicated a second felony offender. People v. Kelly, 65 AD3d 886, 887 (1st Dept.2009)(defendant's failure to raise the issue of whether Maryland crime was equivalent of New York crime waived issue; 440.10 motion to vacate conviction and 440.20 motion to set aside conviction properly denied), app. denied,13 NY3d 860 (2009); People v. Smith, 73 N.Y.2d 961 (1989)(defendant did not timely controvert allegation in predicate felony statement; issue of whether federal conviction for kidnapping was equivalent to New York felony was not preserved).
In this case, Defendant pleaded guilty after a negotiated plea agreement, which included a determination of Defendant as a second felony offender and a sentence promise, conditioned upon certain things, of a determinate sentence of eleven years in prison and five years of post-release supervision—a significantly lower sentence than Defendant could have received if found guilty after trial. The plea agreement also included Defendant's acknowledgment that he would receive 25 years incarceration if he failed to meet the conditions set by the Court.
There can be no dispute that Defendant's decision not to object to the People's contention that he be adjudicated a second felony offender was part and parcel of the negotiated agreement; the agreed-upon sentence—eight plus three—is the minimum allowable sentence for a second felony offender for that crime. PL § 70.06(6)(a)(eight year minimum); PL § 60.07(1) (additional minimum three year term where victim is for-hire vehicle operator). In fact, the People contended, both at the time of the plea and the sentencing, that, had the case gone to trial, they would have sought persistent felony offender status which, if granted, could have exposed Defendant to a life sentence.
Defendant had numerous prior felony convictions, both in New York and in other states.
In this case, Defendant made a decision to forego his right to a trial to avoid the uncertainty of an outcome in exchange for a negotiated sentence—the proposed eleven year sentence that Defendant would have received had he met the requisite conditions under the plea agreement and a 25 year sentence if he did not. In addition, the negotiated sentence was very favorable in light of the charges facing Defendant—that he lacerated the liver of a cab driver during a robbery with a knife—and Defendant's criminal history of felony convictions in New York and elsewhere.
Defendant should not now be able to subvert this negotiated plea by claiming that the D.C. conviction was not a valid predicate felony simply because he failed to meet the requisite conditions to obtain the most favorable promised sentence. Kelly, 65 AD3d at 887 (defendant who pleaded guilty after a negotiated plea and declined opportunity to challenge prior conviction as basis for predicate felony status should be held to his bargain).
As discussed below in Section III, Defendant was sentenced to the 25 year sentence that the Court had warned Defendant about at the time of the plea agreement, (Tr. at 14), because of his own actions-he had failed to comply with specific conditions upon which the more favorable negotiated sentence promise was based.
Moreover, Defendant had the opportunity to challenge his adjudication as a second felony offender and did not do so. In fact, counsel who represented Defendant at the plea proceeding has averred, in connection with this matter, that she investigated the question of whether the alleged predicate felony was a valid predicate under New York law, and found no grounds to challenge it. See Exhibit I to the Affirmation of Lisa A. Packard, dated September 21, 2011.
At the plea proceeding, Defendant was arraigned on the predicate felony information, which identified the D.C. conviction, and, after conferring with his attorney, Defendant expressly declined to challenge the use of this conviction as a predicate felony on either constitutional grounds or on the grounds that he was not the person named in the second felony information. Defendant raised no challenge to the Court's adjudication of him as a second felony offender based on the D.C. conviction, either at that time or at sentencing.
Defendant's decision not to contest his adjudication as a second felony offender and his failure to raise the issue of whether the D.C. conviction is the equivalent of a New York felony at the time of his plea proceeding precludes him from doing so now. Kelly, 65 AD3d at 887;Smith, 73 N.Y.2d at 962. Accordingly, Defendant's motion to set aside his sentence is denied.
II. Defendant's D.C. Conviction was a Valid Predicate Felony
Even if Defendant had not waived his right to challenge his status as a second felony offender, Defendant's motion to set aside his sentence still would be denied. Contrary to Defendant's contention, as set forth further below, the statute under which Defendant was convicted-D.C.Code § 22–2802–is equivalent, in relevant part, to New York's attempt to commit robbery statute, PL § 110/160.00. Thus, Defendant's D.C. conviction constitutes a valid predicate felony under New York law.
With respect to Defendant's out-of-state conviction at issue, according to D.C.Code § 22–2801, an attempt to commit robbery is a felony. Specifically, the D.C. felony robbery statute provides:
Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery, and any person convicted thereof shall suffer imprisonment for not less than 2 years nor more than 15 years.
D.C.Code § 22–2801. Under D.C. law, a robbery is committed when anything of value is taken in either of three ways: (1) “by force or violence,” against resistance;
or (2) “by force or violence,” by sudden or stealthy seizure or snatching;
See. e.g., People v. Wolford, 444 F.2d 876 (D.C.Cir.1971)(alleging that defendants “by force and violence and against resistance and by putting in fear” stole a truck by forcing driver into truck and driving truck away); U.S. v. Spears, 449 F .2d 946 (D.C.Cir.1971)(accusing defendant who robbed post office using gun of committing robbery “against resistance and putting in fear”).
or (3) by putting in fear. United States v. Mathis, 963 F.2d 399, 408 (D.C.Cir.1992) (force or violence elements met by “against resistance” or by “sudden or stealthy seizure or snatching”); Noaks v. United States, 486 A.2d 1177 (D.C.Cir.1985)(under D.C. law, robbery can be committed in several different ways); People v.. Pixley, 692 A.2d 438, 439 (D.C. Ct. Appeals 1997); Clifton, 28 A.D.2d at 709 (pursuant to Goldman analysis, D.C. robbery statute renders criminal several acts, some of which would be felonies and some misdemeanors in New York).
District of Columbia courts have interpreted the language of the second prong—“by sudden or stealthy seizure or snatching”—to include the crime of pickpocketing within the crime of robbery. Noaks v. United States, 486 A.2d 1177 (D.C.Cir.1985)(stealthy taking can be an unobserved taking); Mathis, 963 F.2d at 408;United States v. Williams, 358 F.3d 956 (D.C.Cir.2004). In New York, pickpocketing is only a misdemeanor. As set forth further herein, such “stealthy seizure” provision is irrelevant to the matter before the court as Defendant was not charged or convicted in D.C. pursuant to that provision.
Robbery by stealthy seizure also includes the situation where a victim is incapacitated by the perpetrator, and the victim's property is then taken. See, e.g., Ulmer v. United States, 649 A .2d 295 (D.C.Ct.App.1994).
In New York, robbery is defined as “forcible stealing” and requires the use or threatened use of force to sustain a conviction.
PL § 160.00; People v. Lowery, 253 A.D.2d 893, 894 (2d Dept.1988); People v. Ross, 251 A.D.2d 235, 236 (1st Dept.), app. denied,92 N.Y.2d 951 (1998). An attempt is defined as engaging in conduct which tends to effect the commission of a crime, with intent to commit a crime. PL § 110.00.
.Penal Law § 160.00 defines robbery as follows: “Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: 1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”
With respect to the Court's comparative analysis of the D.C. statute and comparable New York law, where, as here, the foreign statute delineates three different types of robbery—two of which would constitute felonies in New York, one of which would not—the Court must examine the recitals in the out-of-state accusatory instrument that describe the particular acts underlying the charge to isolate and identify the exact crime of which the Defendant was accused. Goldman v. Denno, 9 N.Y.2d at 140;Gonzalez, 61 N.Y.2d at 591;Gold, 5 N.Y.2d at 246 (operative facts in indictment may be referenced to determine whether defendant was accused of breaking into or out of a building); Ricketts, 38 AD3d at 292;Clifton, 28 A.D.2d at 709.
In this case, the accusatory instrument in the D.C. conviction evidences that Defendant was convicted of a crime that would have been a felony in New York. The D.C. Information charged Defendant as follows:
“On or about July 29, 2000, within the District of Columbia, Mark Jurgins, by means of overt acts, that is, assaulting, did attempt, by force or violence, against resistance and by means of putting in fear, to steal and take a purse and its contents, from the person and from the immediate actual possession of Eva Maier.”
[emphasis added]. See Information, attached as Exhibit 1 to the Affirmation of Diego Hernandez. Defendant was charged with attempting to commit robbery under the first and third prongs of the D.C. robbery statute.
Defendant's D.C. conviction qualifies as a valid predicate felony under New York law because the use or threatened use of force, elements which are part of New York's felony robbery statute, also constitute elements of the D.C. crime for which Defendant was convicted. See People v. Hanlon, 157 Misc.2d 659, 665–66 (Sup.Ct., New York Co.1993)(foreign statute must have threatened or actual use of force to effectuate the taking as element to be equivalent to New York robbery felony).
Robberies committed under the first and third prongs of the D.C. statute—“against resistance” or by “putting in fear”—are equivalent to the New York elements requiring “the use or threatened use of force.” See Clifton, at 709 (D.C. crime includes different acts, some of which would be felonies in New York); In re Sealed Case, 548 F.3d 1085, 1089 (D.C.Cir.2008)(D.C. robbery statute covers violent and non-violent theft); Mathis, 963 F.2d at 409–10 (court remands for trial court to investigate whether defendant's conviction under D.C. robbery statute was based on allegations that Defendant used or threatened to use force).
Contrary to Defendant's contention, People v. Clifton, 28 A.D.2d 708 (2d Dept.1967), does not support his claim that his D.C. robbery conviction is not a valid predicate felony in New York. In that case, the Second Department found that the D.C. robbery statute could not be used as a predicate felony for that defendant. The court, utilizing the same Goldman analysis applied by this Court which requires specific inquiry of the foreign accusatory instrument, determined that that defendant was charged under the second prong—“stealth from another”—which is an act that would only constitute a misdemeanor if committed in New York. Id. at 709. That portion of the D.C. statute is not the same prong of the statute with which Defendant was charged and convicted. SeeD.C.Code § 22–2801.
As set forth above, Defendant's D.C. conviction properly was considered a predicate felony for sentencing purposes in this case. Accordingly, even if Defendant had not waived his right to challenge the predicate felony determination by failing to raise it at the time of his plea proceeding, Defendant's motion to set aside his sentence on this ground would be denied.
III. Defendant's Trial Counsel Was Not Ineffective for Failing to Challenge Defendant's D.C. Conviction as a Predicate Felony
Defendant's contention that his trial counsel was ineffective for failing to investigate and challenge the use of the D.C. attempted robbery conviction as a predicate to enhance Defendant's sentence also has no merit.
The Sixth Amendment to the U.S. Constitution and Article 1, § 6 of the New York Constitution both protect a defendant's right to counsel at a criminal trial. To meet federal constitutional muster, an attorney's representation of a defendant must meet a minimum standard of effectiveness which is evaluated in a two-prong analysis as to whether counsel's performance was deficient and, if so, whether such deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984). The New York Constitution requires, at a minimum, that a defendant be afforded “meaningful representation.” People v. Baldi, 54 N.Y.2d 137, 147 (1981); People v. Benevento, 91 N.Y.2d 708, 713 (1998); People v. Saint Hilaire, 5 Misc.3d 1023 A, 1023A (Sup.Ct., New York Co.2004). Here, the Court finds that, pursuant to both New York and federal law, Defendant's claim of ineffective assistance of counsel fails.
As this Court has determined that, as set forth above, Defendant's D.C. conviction constitutes a predicate felony under New York law, any challenge by counsel to the Court's adjudication of Defendant as a second felony offender would have been futile. Therefore, counsel's failure to challenge the predicate felony determination does not constitute ineffective assistance of counsel. People v. Lane, 60 N.Y.2d 748 (1983)(counsel not ineffective for failing to raise futile challenge to second felony offender status); People v. Bell, 259 A.D.2d 429 (1st Dept.1999).
Moreover, the record demonstrates that, in the context of his guilty plea, Defendant, in fact, received meaningful representation. In exchange for his guilty plea, Defendant received an advantageous plea promise—the promise, if Defendant complied with certain conditions, of a sentence of eleven years in state prison and five years probation, or 25 years incarceration if he did not—instead of the significantly longer life sentence of incarceration Defendant could have faced if he were found guilty after trial and the Court had adjudicated Defendant to be a persistent felony offender.
There also is nothing in the record before the Court that suggests that Defendant's counsel was not effective. People v. Jones, 18 AD3d 964, 965 (3rd Dept.)(in context of guilty plea, defendant received meaningful representation when received advantageous plea and nothing in record casts doubt on counsel's effectiveness), app. denied,5 NY3d 790 (2005); People v. Boodhoo, 191 A.D.2d 448, 448 (2nd Dept.1993); People v. Saint Hilaire, 5 Misc.3d 1023A, 1023A (Sup.Ct., New York Co.2004).
Indeed, Defendant received the 25 year sentence of incarceration instead of the 11 year sentence not because of ineffective assistance of counsel but, rather, because of Defendant's own failure to comply with the conditions precedent for the lesser sentence in the plea agreement. At the plea proceeding, Defendant specifically was informed by the Court that it would sentence him to 25 years if Defendant swore to certain facts under oath in court and then denied those same facts to Probation during his pre-sentence interview. See Plea Transcript at 13–17. Yet, Defendant did just that. After averring to his guilt in court on April 15, 2010, Defendant denied his guilt to Probation. As a result of Defendant's noncompliance, the Court imposed the 25 year sentence that it had advised Defendant at the time the plea was taken it would impose if the plea conditions for the 11 year sentence were not met.
Accordingly, Defendant's motion to set aside his sentence on grounds that counsel was ineffective is dismissed. People v. Satterfield, 66 N.Y.2d 796, 799 (1985)(no hearing required on claim of ineffective assistance of counsel where motion could be determined on trial record and motion papers).
CONCLUSION
For the reasons set forth above, Defendant's motion to set aside his sentence is denied.
The following papers were considered by the Court in deciding this motion: Notice of Motion and Affirmation of Lisa A. Packard, Esq., in Support of Motion, filed September 22, 2011; Affirmation of Diego Hernandez, Esq., in Opposition to the Motion, filed October 24, 2011; Reply Affirmation of Lisa A. Packard, Esq., filed November 1, 2011; Sur–Reply Affirmation of Susan E. Baumgartner, Esq., filed November 1, 2011; and Affirmation of Lisa A. Packard, Esq., in Reply to Sur–Reply, filed November 21, 2011.
The foregoing constitutes the decision and order of the Court.