Opinion
No. 11–07–0026.
2012-12-27
The PEOPLE of the State of New York, Plaintiff, v. Wellington WILLIAMS, Defendant.
Thomas N.N. Angell, Esq., Jennifer Burton, Esq., of Counsel, Dutchess County Public Defender, Poughkeepsie, attorneys for defendant. William V. Grady, Esq., Sinead M. McLoughlin, Esq., of Counsel, Dutchess County District Attorney, Poughkeepsie.
Thomas N.N. Angell, Esq., Jennifer Burton, Esq., of Counsel, Dutchess County Public Defender, Poughkeepsie, attorneys for defendant. William V. Grady, Esq., Sinead M. McLoughlin, Esq., of Counsel, Dutchess County District Attorney, Poughkeepsie.
DAVID L. STEINBERG, J.
+-------------------------------------------+ ¦Notice of Motion, dated May 3, 2012 ¦X¦ +-----------------------------------------+-¦ ¦Supporting Affirmation, dated May 3, 2012¦X¦ +-----------------------------------------+-¦ ¦Affirmation in Answer, dated May 23, 2012¦X¦ +-------------------------------------------+
The foregoing papers were considered in deciding this motion:
Wellington Williams (“the defendant”) moves to vacate a judgment of conviction rendered on November 17, 2011 convicting him, upon his guilty plea, of Harassment in the Second Degree (Penal Law 240.26[1] ). Defendant was sentenced to a fine of $100.00 and a mandatory surcharge of $125.00. The court also issued a full order of protection in favor of the victim, A. D., a resident at the Anderson Center for Autism. Defendant, a former employee at Anderson Center, had faced original charges of Endangering the Welfare of an Incompetent Person (Penal Law 260.25) and Harassment in the Second Degree (Penal Law 240.26) that allegedly occurred on or about July 1, 2011. The guilty plea entered into on November 17th represented a negotiated plea agreement between the parties. Since the guilty plea was to a non-criminal violation, defense counsel waived a formal allocution upon the entry of the plea.
The gravamen of defendant's motion is that on March 12, 2012, subsequent to his plea, the New York State Office of Children and Family Services entered into an amended finding of “unfounded” relative to the report of maltreatment filed against defendant. The defendant characterizes this fact as “new evidence discovered by both the defendant and his attorney” that the State is not pursuing the charges. Defendant further contends if this “new evidence” was known at the time of the plea, it would have changed the outcome of the case.
Defense counsel in her affirmation in support of the application alleges certain facts about the complainant's “known issues with both communication and comprehension”, that no statement was taken from complainant, and that the basis of the allegation was a co-worker. Additional details are set forth by defense counsel regarding the limits of the defense's ability to investigate and access the co-worker's file or the defendant's personnel file, both of which may have been beneficial in defending he defendant. Defense counsel's affirmation is of limited value as any factual assertion not based upon personal knowledge is without evidentiary value. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Jefferson v. Village of Ossining, 18 AD3d 502 (2d Dept 2005). The defendant has not submitted an affidavit in support of the motion, not even to state he would not have pleaded guilty had known that an “unfounded” finding would be made thereafter.
In opposition, the District Attorney contends defendant has not set forth sufficient facts to permit him to withdraw his plea. She characterizes the defendant as having “second thoughts” following his guilty plea as there has been some finding by the State that the charge is unfounded. She also notes that the standard of proof for a civil state investigation and a criminal prosecution are different. She points out that defendant is not suggesting his plea was coerced or involuntary made, and that he was represented by competent counsel.
The court questions whether the “unfounded” determination in March, 2012 constitutes newly discovered evidence as defined by the New York courts. People v. Salemi, 309 N.Y.208 (1955); People v. Malik, 81 AD3d 981 (2d Dept 2011); People v. Lavrick, 146 A.D.2d 648 (2d Dept 1989). No case authority has ben submitted for or against this proposition. The defendant provides scant evidence in admissible form in support of his application. Nor does he explain the import of the “unfounded” determination and the underlying reasons based upon his personal knowledge, or any evidence of any kind as to the factual or legal basis for the “unfounded” determination.
The presumption of regularity applies to a judgment of conviction. In a motion to vacate judgment pursuant to CPL 440.10, the defense has the burden of proof by a preponderance of the evidence. CPL 440 .30(6); People v. Satterfield, 66 N.Y.2d 796 (1985).
Here, whether the “unfounded” determination that occurred after the guilty plea to a reduced charge of harassment is or is not newly discovered evidence is not dispositive in this case. The vacatur of a judgment of conviction based upon newly discovered evidence may occur only where the defendant is convicted after trial. A defendant who pleads guilty may not thereafter move to vacate his guilty plea based on this ground. CPL 440.10(1)(g); People v. Philips, 30 AD3d 621 (2d Dept 2006).
The motion is denied.
The foregoing constitutes the decision and order of the court.