Opinion
06-013.
Decided January 10, 2011.
Hon. Barry L. Porsch, Seneca County District Attorney, Counsel for the People.
Damon Robertson, Pro se Petitioner.
The defendant moves this court to vacate his November 30, 2006 conviction, after a guilty plea on October 19, 2006, for the crime of Attempted Promotion of Prison Contraband in the First Degree (Penal Law §§ 110.00, 205.25), a class E felony, pursuant to Article 440 of the Criminal Procedure Law.
Based on the defendant's submissions, the People's response and all the proceedings had herein the Court decides as follows:
Defendant bases his motion on the ground of ineffective assistance of counsel, arguing that his trial counsel failed to investigate the law and facts before advising him to plead guilty to the felony contraband charge, given the small amount of marijuana allegedly possessed by the defendant while incarcerated in a correctional facility. He points to the case of People v Finley , 10 NY3d 647 (2008) wherein the Court of Appeals determined that a small amount of marihuana (less than 25 grams) does not constitute dangerous contraband within the meaning of Penal Law sections 205.00(4) and 205.25(2).
The People oppose the motion, noting that the defendant did not appeal his conviction. The People refer to CPL 440.10[c], noting that here, defendant unjustifiably failed to take an appeal, citing People v Cooks, 67 NY2d 100. They argue that sufficient facts appear on the record to have permitted adequate appellate review of the issue, and the defendant failed to set forth a justification why these issues were not raised on appeal, and so the court should deny the motion. They argue that even though Finley was decided after defendant's time to file a notice of appeal, it would not have been futile because defendant had the same opportunity as the successful defendant had in Finley.
The People also argue that the defendant's arguments are non-meritorious, because the 29.8 grams of marijuana possessed by defendant is more than the 25 grams or less that the Court in Finley held was not dangerous contraband. See People v Cooper , 67 AD3d 1254 (3rd Depart, 2009) decided after Finley where 30.5 grams of marijuana constituted dangerous contraband.
The defendant correctly points out in his reply that the amount of marijuana was determined to be 12.9 grams, not the 29.8 grams stated in the People's response to the motion. He is incorrect, however, in stating that People v Mc Crae, 68 AD3d 1451, 3rd Dept., 2009, did not involve a direct appeal first, and then an appeal from the 440 motion. The defendant in that case had appealed first, before making his 440 motion, arguing that marihuana is not "dangerous contraband" within the meaning of Penal Law section 205.00(4) in 2002. People v Mc Crae, 297 AD2d 878, 3rd Dept., 2002.
When presented with a motion pursuant to Article 440 of the Criminal Procedure Law, the Court must deny the same, when, "Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's . . . unjustifiable failure to take or perfect an appeal during the prescribed period." CPL § 440.10[c].
The Court concludes that the defendant in this case could have pursued the issues now presented in the 440 motion via direct appeal. There are no additional facts that needed to appear on the record for appellate review of this issue to occur. He could have appealed the conviction, and could have argued ineffective assistance of trial counsel. Thus, the motion is denied.
Further, even if the Court considered the substance of the defendant's motion, the motion would be denied. In reviewing a claim of ineffective assistance of counsel, the court must determine whether "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation." People Baldi, 54 NY2d 137,147 (1981). The Baldi decision makes clear that it is the over all representation afforded by defense counsel that must be reviewed, not one particular aspect of that representation.
Under the rule set forth in Baldi, the court must determine whether the defendant received "meaningful representation." People v Benevento, 91 NY2d 708,712 (1998).
"The question is whether the attorney's conduct constituted egregious and prejudicial' error such that defendant did not receive a fair trial." Benevento, at 713, quoting People v Flores, 84 NY2d 184,188-189 (1994).
Here, the Court notes that the defendant's attorney argued that the marijuana was not "dangerous contraband" in his Omnibus Motions. See attorney affirmation in support of defendant's omnibus motion dated October 16, 2006. Thus the issue was framed, and available for an appeal, yet defendant failed to make such an appeal, even though he was informed of his right to appeal at the sentencing. Transcript pg.5-6.
Upon review of the record, this Court concludes that, "the evidence, the law, and the circumstances of [the] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation." Baldi, supra at 147.
Defendant's motion is denied in all respects.
The foregoing constitutes the Opinion, Decision and Judgment of this Court.
SO ORDERED.