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C.P.L. 440.10 motion

On 10 October 2008, the defendant pled guilty to Common Law DWI or Driving While Intoxicated in violation of V.T.L. 1192(3). That plea satisfied the charges of Resisting Arrest, P.L. 205.30 and Failure to Take the Roadside Breath Test, V.T.L. 1194 (1)(B). Subsequent to the arraignment, the defendant appeared with his attorney, who requested an adjournment to submit motions. The motions were subsequently argued and the matter was set down for a probable cause hearing on 3 September 2008. However, instead of a hearing on that date the matter was adjourned to 10 October 2008. On that day a pre-trial conference was conducted in chambers with counsels. At that conference the People made the plea offer which resulted in the aforementioned plea. Prior to taking the defendant’s plea this court advised him of his right to a jury trial, the People’s burden of proof, and of the fact that the verdict of the six person jury must be unanimous.

The defendant was further advised that his lawyer could cross-examine the People’s witnesses, that he could present his own witnesses, and that he could testify, but if he chose not to do so that fact could not be used against him. The defendant then proceeded to waive his right to a trial. At that time the assistant district attorney engaged in a factual dialogue with the defendant wherein he asked if the defendant operated a motor vehicle under the influence of alcohol DUI on 14 March 2008 to which defendant answered in the affirmative. The defendant also admitted to drinking a “six-pack” upon further inquiry by the prosecutor.

Thereafter, the case was adjourned for return of a pre-sentence investigation and sentencing to 17 December 2008. After reviewing the pre-sentence investigation, wherein the defendant claimed he was unjustly arrested, the defendant was sentenced to a one year revocation of his driver’s license, the New York State Drinking Drivers Program, one Victim Impact Panel, three years probation, three work weekends a $500.00 fine and the required surcharge of $190.00. Despite the fact that the sentencing was about five weeks after his plea, the defendant again failed at that time to deny having operated his vehicle while intoxicated.

Again, on 23 December 2010, the defendant was arrested and charged with Per Se, Driving While Intoxicated, V.T.L. 1192(2), Common Law Driving While Intoxicated, V.T.L. 1192(3) and Excessive Tinted Glass, V.T.L. 375(12)(a)(b)(2). Since the defendant was convicted of Common Law Driving While Intoxicated V.T.L. 1192(3) in 2008, the most recent charge of Common Law Driving While Intoxicated, was charged as a felony pursuant to V.T.L. 1193(1)(c)(i). The defendant retained his current attorney, who filed a motion, pursuant to C.P.L. 440.10(1)(h) to vacate the previous driving while intoxicated conviction.

C.P.L. 440.10(1)(h) states as follows: “At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.” The defendant argues that his conviction should be vacated because he was not advised by his attorney that he could have raised the defense of non-operation. Thus, he was alleging that the ineffective assistance of counsel resulted in his decision to plead guilty in October of 2008 to common law driving while intoxicated, which effectively denied him his right to an attorney.

After oral argument of the C.P.L. 440.10 motion, the matter was set down for a hearing. At a hearing on a motion pursuant to CPL 440.10, the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion in accordance with C.P.L. 440.30(6) and as was held in People v Tucker, involving a motion to vacate a judgment of conviction based on new evidence pursuant to C.P.L 440.10(1)(g) and People v Tankleff.

The court is now faced with the issue of whether or not the failure of a defense attorney to pursue a possible defense theory in and of itself deny the defendant meaningful representation of counsel.

It is the defendant’s contention that judgment was obtained in violation of a right of his right under the constitution of this state or of the United States pursuant to C.P.L. 440.10(1)(h). In this case, the defense maintains that because the defense attorney, who represented the defendant in 2008, failed to advise the defendant that he could have raised a defense to the charge of Common Law Driving While Intoxicated, V.T.L. 1192(3), to wit: that he had not put his vehicle in operation, as that term is defined by the law, he was denied his right to counsel as guaranteed by the both the United States Constitution and the New York State Constitution.

There are two distinct judicial standards for determining ineffective assistance of counsel. The federal courts apply a two-prong standard as ruled in People v. Turner.

Under the Federal Constitution, a guilty plea will be upheld as valid when it represents a voluntary and intelligent choice among alternative courses of action open to a defendant as was done in Hill v Lockhart. A defendant who seeks to challenge the voluntary and intelligent character of a guilty plea on the ground of ineffective assistance of counsel must establish that defense counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty as held in Strickland v Washington and People v Ortega.

The New York State courts have departed from the second prong of Strictland, adopting a rule somewhat more favorable to defendants as in People v Turner. A defendant must receive meaningful representation. The court is now faced with the question of what constitutes meaningful DWAI representation.

It was held in People v Baldi that a defendant receives the effective assistance of counsel when the totality of the circumstances of the matter allows the conclusion that a defendant received meaningful representation. But meaningful representation does not require perfection as held in People v Ford and People v Anderson. In People v Mouck, a driving while intoxicated DWI case, that is somewhat similar to the instant case, the defendant alleged that he was denied adequate assistance of counsel because his attorney did not request a probable cause hearing. The court held that the failure to pursue a particular pretrial remedy does not, ipso facto, demonstrate ineffectiveness in People v Rivera. The pivotal inquiry is whether counsel’s decision is premised on a legitimate, strategic basis.

It was ruled in People v Boodhoo and People v Mayes that in the context of a guilty plea, a defendant receives meaningful representation when he obtains an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel. In People v Black, People v Garcia and People v Mercado, it was held that once a defendant acquires a favorable plea bargain, it cannot be concluded that the defendant was denied effective assistance of counsel.

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.

New York DWI Lawyers, among others, at Stephen Bilkis & Associates are vigilant in the pursuit of cases involving the issues mentioned in the case above. Should you find yourself in the same situation as the defendant mentioned, please do not hesitate to call our toll free number or visit our place of business. Our New York Criminal Lawyers are ready to answer your questions.

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