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C.P.L. 440.10 motion…cont

The fact that the defendant pled guilty after denying his guilt to the probation officer who prepared the pre-sentence investigation is not automatically a basis for establishing a claim of ineffective assistance of counsel. At the C.P.L 440.10 Hearing the defendant testified on his own behalf. He first argued in his affidavit that he relied on the uncontradicted statement of the arresting officer that he was guilty because of the statement by the officer that “the key is in the ignition”. However, he testified at the hearing to never exploring this issue with his attorney. A review of the court’s file of the 2008 case reveals that the arrest took place at approximately 1:40 A.M. on March 14th.

The defendant advised the probation officer, who prepared the pre-sentence investigation, that on 13 March 2008 between 8:30 P.M. and 10:30 P.M. that he consumed seven drinks, i.e. five beers and two mixed drinks while operating his snowmobile. He then drove his father’s truck to his girlfriend’s house at 903 Meadow Ridge Lane in Webster and fell asleep in said truck outside his girlfriend’s house. It is thus conceivable that despite the colloquy that referenced the arrest date of March 14th, the defendant was admitting to the driving his vehicle in an intoxicated condition while driving his vehicle to the location in question before midnight on March 13th. Certainly, he admitted to driving a truck from his home to that of his girlfriend after drinking seven alcoholic drinks in a two hour period. It is quite possible that said set of facts influenced the advice given by counsel to his client prior to the time of the plea. It is inconceivable that the defendant did not discuss with his attorney what he in fact had to drink on the evening in question. He did refuse to take the breathalyzer test. That would have resulted in the fact of said refusal being entered into evidence at trial in accordance with V.T.L. 1194(2)(f).

The defendant’s original attorney also testified at the C.P.L. 440.10 hearing. He stated that he did not speak to the defendant about raising the defense of operation. However, he did testify that one of the reasons for recommending the plea deal in question was that it satisfied the other criminal charge of Resisting Arrest, P.L. 205.30, which indicates a specific strategy employed by defense counsel on behalf of his client. Certainly that was a reasonable strategic decision for a defense attorney to take.

Nevertheless, had the defendant not engaged the ignition after being approached by the officer, it is still possible that the officer could have charged him with driving while intoxicated based on the defendant being behind the wheel of the truck in the early morning hours, with a key in the admission and evidencing any of the various indicia of intoxication. Whether such a charge would have necessarily resulted in a conviction is not the issue. What he may have told his attorney about how much he had to drink and in what time frame prior to arriving in front of his girlfriend’s residence may have been the deciding factor in advising the defendant as to how to proceed.

People v Ford emphasized that effective assistance of counsel is meaningful representation not perfect representation. Hindsight does not transform tactical errors into ineffective assistance of counsel as held in People v Baldi. Only errors that seriously compromise a defendant’s right to a fair trial warrant a finding of ineffectiveness as held in People v Hobot. In the end, a claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the DUI case as held in People v Benevento and People v Prescod.

“Meaningful representation” is not easily defined. The allegation of ineffective assistance of counsel must be determined on a case by case basis.

In the case at bar defense counsel appeared in court with his client on six occasions, obtained discovery from the district attorney’s office, filed omnibus motions and engaged in oral argument, which resulting in the court reserving decision on the issue of sufficiency of the accusatory instrument charging the defendant with resisting arrest until a probable cause hearing could be held on the driving while intoxicated charge.

Defense counsel met with the court and the district attorney for a pre-trial conference to discuss the case. Furthermore the defendant testified at the C.P.L. 440.10 hearing that he met with his attorney on “three or four” occasions. The plea agreement resolved the other misdemeanor charge of resisting arrest and the remaining traffic infraction was taken in satisfaction. Based on the defendant’s record, as revealed by the pre-sentence investigation, a plea agreement involving a jail sentence would not have been excessive. As a result, the DWAI defendant received a favorable result.

All these factors would point to the defendant having received meaningful representation by his attorney. Thus the defendant failed to sustain his burden of proof by a preponderance of the evidence that he did not receive meaningful representation by his attorney, even though the original defense attorney did not pursue the defense of non-operation.

The defendant’s motion to vacate the plea to Common Law Driving while intoxicated entered on 10 October 2010, pursuant to C.P.L. 440.10(h) is hereby denied.

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