Opinion
Ind. No. 166/2017
06-10-2019
THE PEOPLE OF THE STATE OF NEW YORK Plaintiff, v. CARL MIMMS, Defendant.
WILLIAM V. GRADY, ESQ. District Attorney by: Bridget Rahilly Steller,Esq. Attorney for Plaintiff CARL MIMMS Defendant Pro Se
ORIGINAL
Index#2801/2017 PRESENT: HON. EDWARD T. McLOUGHLIN Dutchess County Court Judge
DECISION AND ORDER CPL §440.10 MOTION
WILLIAM V. GRADY, ESQ.
District Attorney by:
Bridget Rahilly Steller,Esq.
Attorney for Plaintiff CARL MIMMS
Defendant Pro Se
| Notice of Motion | X |
| Affidavit in Support | X |
| Affirmation in Answer | X |
| Reply Affidavit | X |
The foregoing documents were considered in deciding this motion.
BACKGROUND
The defendant was taken into custody in the City of Beacon on November 2, 2017, whereupon he was charged with Criminal Possession of a Controlled Substance in the Third Degree, a Class B Felony (Penal Law §220.16[1]) and Criminal Possession of a Controlled Substance in the Fourth Degree, a Class C Felony (Penal Law §220.09[1]). He was arraigned in the City of Beacon Court and a preliminary hearing was scheduled for November 8, 2017.
Instead of conducting the preliminary hearing on the date as scheduled, the People presented the defendant's case to a Dutchess County Grand Jury, which indicted the defendant for Criminal Possession of a Controlled Substance in the Third Degree, a Class B Felony (Penal Law §220.16[1]) and Criminal Possession of a Controlled Substance in the Fourth Degree, a Class C Felony (Penal Law §220.09[1]). A certification pursuant to CPL §180.80[2][a]) was provided to the City of Beacon Court on November 8, 2017. This certification affirmed that a Dutchess County Grand Jury had voted an indictment against the defendant on that date.
The original of Indictment No. 166/2017 was reported to this Court on November 29, 2017. That original indictment was processed according to law and filed with the County Clerk of Dutchess County. A review of the proceedings from that date reflect that the original indictment as handed up by the People contained the signatures of Dutchess County District Attorney, William V. Grady and the foreperson of the Grand Jury for that particular term.
The defendant was arraigned on the instant indictment on December 8, 2017. The matter was then adjourned for the commencement of the pre-trial motion schedule or a possible resolution.
On January 12, 2018, the defendant entered a plea of guilty to the first count of the Indictment in satisfaction of the remaining count. On February 2, 2018, the defendant was sentenced as a Second Felony Offender to a determinate sentence of seven years in state prison, to be followed by three years post release supervision. The Court also imposed the mandatory surcharges and fees commensurate with his conviction.
A Notice of Appeal was filed on the defendant's behalf and he was granted poor person relief and was assigned appellate counsel by the Appellate Division, Second Department. There is no proof that the defendant has perfected his appeal to date.
He is now before this Court on the instant CPL §440.10 motion.
DEFENDANT'S CLAIMS
The defendant requests that the Court vacate his judgment of conviction for a number of reasons. Specifically, the defendant alleges that because a preliminary hearing was not held, the indictment in question should be dismissed.
Additionally, the defendant alleges that the indictment was not signed by District Attorney Grady, nor the foreperson of the Grand Jury which voted a true bill against him. Therefore, the defendant asserts that his conviction should be vacated due to a jurisdictional defect.
The defendant also alleges that counsel was ineffective in its representation because they failed to file any pre-trial motions on his behalf.
Next, the defendant alleges that his plea was not knowingly, voluntarily or intelligently made. He asserts that he was innocent of the charge to which he pled guilty.
The defendant also asks that the Court conduct an evidentiary hearing pursuant to CPL §440.30 to resolve the issues raised.
Lastly, the defendant made a subsequent motion for a default judgment on the instant application, alleging that the People failed to respond to his original CPL §440.10 motion in a timely manner .
DISCUSSION
The defendant's application for a default judgment in the instant matter is denied. In a matter of a such a serious nature, the Court's preference is to make its determination on the merits and not stand on the strict procedural application of artificial dates.
Likewise, the defendant's request for an order directing an evidentiary hearing to be conducted pursuant to CPL §440.30 is denied.
A hearing on the CPL §440 motion is not required where a determination can be made on the basis of the record and the submissions by the parties. People v. Satterfield, 66 NY2d 796.
The defendant's argument that the indictment against him should be dismissed because the People failed to conduct a preliminary hearing on November 8, 2017 is without merit. Documentary evidence presented by the People reflect that on that date, a duly constituted Grand Jury in Dutchess County took action by voting a two count indictment against the defendant. This action thereby superceded the necessity for the City of Beacon Court to conduct a preliminary hearing.
In addition, by pleading guilty, the defendant forfeited the right to appeal the absence of a preliminary hearing in the proceedings before the County Court. See People v. Fagan, 53 AD3d 983 (3rd Dept. 2008).
A defendant does not have any constitutional right to a preliminary hearing, nor is it a jurisdictional predicate to indictment. See People v. Bensching, 117 AD2d 971 (4th Dept. 1986). The law is also clear that where, as here, a defendant is not afforded a preliminary hearing, his release from custody might be required (CPL §180.80), but such omission does not preclude a Grand Jury from considering the People's evidence and rendering an indictment accordingly. See Fagan, supra; Bensching, supra.
The defendant also moves to set aside the judgment of his conviction alleging that the indictment charging him was defective because it lacked the signatures of the District Attorney and the Grand Jury foreperson. This claim is belied by the original indictment which is on file with the County Clerk of Dutchess County, a copy of which has been submitted by the People as Exhibit 4. See People v. Medina, 273 AD2d 119 (1st Dept. 2000).
The defendant's claim that he was denied effective assistance of counsel is without merit. In evaluating ineffective assistance of counsel claims, the Court of Appeals has consistently applied a "flexible" approach. People v. Benevento, 91 NY2d 708. As long as the evidence, the law and the circumstances of a particular case viewed in the totality at the time of the representation, revealed that the attorney provided "meaningful representation", a defendant's constitutional rights to the effective assistance of counsel have been met. People v. Baldi, 54 NY2d 137.
The defendant's claims of ineffective assistance of counsel are contrary to the court record in these proceedings.
A colloquy on January 12, 2018 was held between the Court and the defendant at the time the defendant pled guilty: The Court: In pleading guilty, you're giving up your right to both kinds of trials as well as your right to remain silent and not incriminate yourself. Do you understand that? The defendant: Yes. The Court: Have you discussed your guilty plea with your attorney and discussed with him what your possible defenses, strategies and arguments would have been at trial. The defendant: Yes. The Court: Are you satisfied with your attorney's advice and representation? The defendant: Yes. The Court: Are you pleading guilty today voluntarily? The defendant: Yes. The Court: Do you feel that you have been threatened or forced by anyone into pleading guilty? The defendant: No.
Where a defendant has entered a guilty plea, such plea marks the end of a criminal case, not the gateway to further litigation. People v. Taylor, 65 NY2d 1.
Where a defendant has specifically stated that he has consulted with his attorney regarding all issues in the case and he is satisfied with his attorney's representation, the County Court is justified in denying the defendant's CPL §440.10 motion. People v. Lindsey, 179 AD2d 915 (3rd Dept. 1992).
In addition, where a defendant confirms that he understands the consequences of pleading guilty and was not coerced and also acknowledged that he had time to discuss his guilty plea with counsel and was satisfied with counsel's services, he will not be permitted to prevail on a CPL §440.10 motion. People v. Stone, 9AD3d 498 (3rd Dept. 2004), lv. den. 3 NY3d 712.
Likewise, the failure to make pre-trial motions is not ineffective assistance of counsel, especially where the defendant acknowledges on the record during his plea allocution that he has discussed any possible defenses, legal arguments and strategies with his attorney prior to pleading guilty. See People v. Clifford, 295 AD2d 697 (3rd Dept. 2002), lv. den. 98 NY2d 709.
The record reveals that the defendant was fully informed and understood the terms of his plea agreement. Specifically, the defendant understood the maximum sentence he could receive in the instant matter. In such a situation, the defendant's plea is considered knowing, voluntarily and intelligently made. People v. LaCaille, 26 AD3d 592 (3rd Dept. 2006).
In the instant matter, the defendant was facing the possibility of 12 years in prison as a maximum sentence on the highest count contained within the indictment because of his status as a Second Felony Offender. It is well settled that in the context of a guilty plea by a defendant, he has been afforded meaningful representation when he receives an advantageous plea. People v. Ward, 2 AD3d 1219 (3rd Dept. 2003), app. den. 2 NY3d 808.
Where, as in the instant matter, a statement by a defendant under oath indicates he is satisfied with his attorney's services, he should not later be heard to claim ineffective assistance of counsel, especially where defense counsel has negotiated a favorable plea agreement for him. People v. Torres, 302 AD2d 481 (2nd Dept. 2003).
Lastly, the defendant's claim of actual innocense does not lie where the defendant has pled guilty unless there is DNA evidence which refutes his plea of guilty. People v. Tiger, 32 NY3d 91. No such DNA evidence has been proffered.
For all the foregoing reasons, the defendant's motion is denied in its entirety.
This constitutes the decision and order of the Court.
APPEAL RIGHTS
The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 12201 for a certificate granting leave to appeal from this Order. That application must be made within thirty days of service of this Order/Decision. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted. (22 NYCRR 671.5) Dated: Poughkeepsie, New York
May June 10, 2019
/s/_________
HON. EDWARD T. McLOUGHLIN
COUNTY COURT JUDGE TO: Bridget Rahilly Steller, Esq.
Dutchess County District Attorney's Office
236 Main Street
Poughkeepsie, NY 12601
Carl Mimms (18A0786)
Five Points Correctional Facility
6600 State Route 96
Caller Box 119
Romulus, NY 14541