On February 7, 2018, defendant pled guilty to Assault in the Third Degree, in violation of Penal Law §120.00(1), and was sentenced to a conditional discharge, the condition being a minimum of three months of counseling with a private doctor. The Court also entered a full and final order of protection in favor of the complainant. Defendant now moves pursuant to CPL §440.10 for an order vacating the judgment of conviction. For the reasons discussed below, the Court DENIES the motion to vacate the judgment.I. FACTUAL BACKGROUNDA. The AllegationsAccording to the accusatory instrument, the defendant struck the complainant, who was his girlfriend, in the jaw, with a closed fist, causing a fracture to her jaw as well as bruising and swelling. Defendant also took the complainant’s phone when he left her apartment.B. Legal ProceedingsOn July 22, 2017, the defendant was arraigned on a misdemeanor complaint charging him with Assault in the Third Degree, in violation of Penal Law §120.00(1), Petit Larceny, in violation of Penal Law §155.25, Aggravated Harassment in the Second Degree, in violation of Penal Law §240.30(4), Attempted Assault in the Third Degree, in violation of Penal Law §§110/120.00(1), and Harassment in the Second Degree, in violation of Penal Law §240.26(1). The defendant was released on his own recognizance.On February 7, 2018, the defendant pled guilty to Assault in the Third Degree, in violation of Penal Law §120.00(1), in full satisfaction of the docket, and the Court sentenced him as described above.II. DISCUSSIONA. Defendant’s ArgumentsThe defendant moves to vacate the judgment on the ground that “he did not understand what he was doing when he pled guilty,” and that his counsel at the plea was ineffective. (Heaphy Aff.2).Defendant, who professes his innocence of the assault charge, and who is now represented by different counsel, claims that it was his understanding that his prior counsel had arranged a plea to criminal contempt on a related docket, and that this docket would be dismissed as covered. (Heaphy Aff.3). Defendant argues that prior counsel spent very little time with him discussing the plea, and told him to answer “yes” to everything. (Dawson Aff.3). As such, defendant alleges that he was denied the effective assistance of counsel. He also claims that his plea of guilty was involuntary, as he was unable to “comprehend the gravity of his actions” because he had just been released from custody, and was not given any of his medication: to wit, Zoloft and Valium.B. Defense Counsel Was Not IneffectiveFor several reasons, defendant’s ineffectiveness claim fails. First, defendant has failed either to submit an affidavit from the attorney who represented him when he accepted the plea or offer an explanation for his failure to do so. See People v. Morales, 58 NY2d 1008, 1009 (1983); People v. Johnson, 292 AD2d 284, 285 (1st Dept. 2002).Additionally, the defendant’s conclusory allegations of coercion on the part of defense counsel are clearly belied by the record of the plea proceedings, in which defendant stated that he was not forced into entering the plea of guilty (February 7, 2018, at 5, lines 7-9).1 See People v. Nin, 276 AD2d 350 (1st Dept. 2000). His claim of innocence is also refuted by his admission of guilt (February 7, 2018, at 6, lines 5-12).2 Moreover, defendant’s claim that he did not understand that he was pleading guilty to assault is also belied by the record of the plea proceeding. Examination of the plea minutes (February 7, 2018, at 4, lines 18-25 and at 5, lines 1-6) reveals that the Court specifically told the defendant that: (1) he was pleading guilty to assault in the third degree; (2) it was a misdemeanor; (3) it would add to his criminal record; (4) he would be sentenced to a conditional discharge, and; (5) he would have to abide by a full and final order of protection. The Court then asked the defendant whether this was what he wanted to do, and he responded in the affirmative.The defendant accordingly received “meaningful representation.” People v. Benevento, 91 NY2d 708, 712 (1998). Prior counsel procured an advantageous disposition for the defendant that avoided exposing him to a potential prison sentence. Defendant has not “convince[d] the Court that a rejection of the advantageous plea bargain and exposure to a [jail] sentence,…if convicted after trial,…would have been rational.” People v. Rigg, 27 Misc 3d 1231(A) at *4 (County Ct. Sullivan County 2010). See also People v. Valestil, 27 Misc 3d 1234(A) at *3 (Crim. Ct. Kings County 2010).B. The Plea Was Knowing, Intelligent and Voluntary Despite the Supposed Alleged Lack of MedicationThe defendant alleges that prior to taking the plea he had been in custody and had not received any of his medication: to wit, Zoloft and Valium. He therefore alleges that he was not in a proper state of mind to “comprehend the gravity of his actions.”A belated and unsubstantiated assertion that the plea was the result of the failure to take prescribed medication is insufficient to support a motion pursuant to CPL 440.10. People v. Gonzales, 231 AD2d 939, 940 (4th Dept. 1996); People v. McNair, 186 AD2d 1089 (4th Dept. 1992). Cf. People v. DeWolf 155 AD2d 995 (4th Dept. 1989). Defendant has failed to offer any support for his claim that he was on medication at the time of his plea, let alone that as a result of his failure to receive it he did not understand the nature of the charge to which he was pleading guilty or the rights he was giving up by doing so. See People v. Williams, 237 AD2d 644, 645 (3d Dept. 1997). In fact, defendant’s responses during the allocution belie this assertion, as they were “entirely suitable and pertinent.” E.g., People v. Passero, 222 AD2d 858, 859 (3d Dept. 1995). See also People v. Hall, 168 A.D..2.d 310, 311 (1st Dept. 1990).Moreover, the defendant did not act in a bizarre, inappropriate or erratic manner during the plea proceeding. See People v. Rippel, 221 AD2d 1025, 1025-26 (4th Dept. 1995). Thus, there was nothing in his demeanor to indicate that further inquiry should be made into a possible impairment of his ability to intelligently enter a plea. People v. Rivera, 191 AD2d 209 (1st Dept. 1993). Similarly, defense counsel never indicated that the defendant was unmedicated and hence unable to knowingly and intelligently waive his constitutional rights. Id. Accordingly, there is no support at all for defendant’s claim that he was incapacitated at the time he entered this guilty plea. People v. Buckley, 139 AD2d 589 (2d Dept. 1988); People v. Gosso, 130 AD2d 683 (2d Dept. 1987).In sum, at the plea proceeding, the defendant admitted his guilt to the offense to which he was pleading guilty and averred that he was not forced into pleading guilty, and that he understood that he was giving up his rights to a jury trial, to confront the witnesses against him and to remain silent. “Thus, the record as a whole establishes defendant’s understanding and waiver of his constitutional rights (see Boykin v. Alabama, 395 US 238 [1969]), and nothing in the allocution casts any doubt on the plea’s voluntariness.” People v. Sparks, 58 Misc 3d 149 (App. Term,1st Dept, 2018).C. ConclusionFor the foregoing reasons, the defendant’s motion to vacate the judgment is denied. III.CONCLUSIONThe defendant’s motion to vacate the judgment is denied.This constitutes the Decision and Order of the Court.Dated: September 17, 2018New York, New York
