Defendant was charged by Felony Complaint with Burglary in the Third Degree (P.L. 140.20) under Docket No.2261-19 and Criminal Mischief in the Second Degree (P.L. 145.10) under Docket #2262-19. Defendant was arraigned on the charges on April 17, 2019 and Joseph Goubeaud was assigned as his counsel. On May 8, 2019, the felony charges were reduced to misdemeanors on both dockets; Docket #2261-19 reduced to Petit Larceny (P.L. 155.25) and Docket #2262-19 reduced to Criminal Mischief in the Fourth Degree (P.L. 145.00). Defendant plead guilty to the reduced charge of Petit Larceny (P.L. 155.25) in full satisfaction of both dockets, and in return was promised a sentence of nine months incarceration in the Westchester County jail. The matter was adjourned to June 13, 2019 for sentencing. On July 10, 2019, prior to sentencing, the defendant filed the instant motion seeking to withdraw the guilty plea and directing the reinstatement of the Felony Complaints pursuant to C.P.L. 220.60. The People oppose the motion. On this motion, the defendant states that he is not guilty of the crime that he pleaded guilty to on May 8, 2019. Defendant states that his prior counsel, Joseph Goubeaud, only met with him two times at this courthouse prior to entry of his plea. He maintains that Mr. Goubeaud never asked him what happened but instead told him he could get him out of jail if he accepted the plea. He further states that he barely finished high school and did not understand the impact of the plea allocution. Defendant states that he is unfamiliar with criminal court procedures and was intimidated by the judge’s voice. Defendant maintains that he is the victim of ineffective assistance of counsel and misunderstood the consequences of his plea. Finally, he argues that a nine months incarceration is excessive for the minor incidents related to these charges. Defendant’s current counsel, Jean Robert Auguste states that the defendant has been in custody from the time of his arrest until now. On June 13, 2019, defendant stated on the record that he wanted to withdraw his guilty plea. Mr. Goubeaud was relieved and Mr. Auguste was assigned as new counsel. Mr. Auguste affirms that he visited the defendant while incarcerated at the Westchester County Jail. Defendant informed Mr. Auguste that the members of the Mount Vernon Police Department ignored his requests for an attorney before and during interrogation, and that as a result of having no lawyer present, he made incriminating statements. Defense counsel states that he discussed the consequences of the guilty plea with the defendant and believes defendant made a mistake and was unaware of the consequences of his plea. Mr. Auguste argues that the defendant now wants his day in court. In opposition, the People assert that defendant entered the plea in open court with the aid of competent legal counsel and that the plea was knowingly, voluntarily, and intelligently entered into by the defendant. The People maintain that defendant’s claim that he was intimidated by the judge and is unfamiliar with criminal court procedure is belied by his extensive criminal history. Assistant District Attorney Graham Chapman argues that at the time the defendant entered into his plea, he already had sixteen misdemeanor convictions, all of which are the product of plea negotiations followed by guilty pleas. The People further argue that they had extensive plea negotiations with defendant’s prior counsel, Mr. Goubeaud. On April 24, 2019, the People made an offer of an A misdemeanor with a one year period of incarceration or a Felony Hearing. Defendant rejected the offer and requested a Felony Hearing and the matter was adjourned to May 8, 2019. On May 8, 2019, the People were prepared to go forward with the felony hearing but continued with extensive plea negotiations with defense counsel. Mr. Chapman affirms that he advised the defendant and Mr. Goubeaud that a new charge was going to be filed against defendant for a trespassing incident that allegedly occurred on April 5, 2019. Mr. Chapman maintains that after having conversations with Mr. Goubeaud, the People agreed to offer nine months incarceration if the defendant pleaded to one count of Petit Larceny under Docket #2262-19. The People maintain that during these plea negotiations they agreed that the uncharged criminal trespass matter would also be covered by this plea agreement. The People argue that defendant received the promise of a favorable nine month sentence, in that he was facing a maximum indeterminate sentence of three to seven years or a 15 year determinate sentence. During the plea colloquy defendant tried to negotiate the promised sentenced down to six months, to no avail. Nevertheless, he entered the plea on the record in open court. The People maintain that during the plea voir dire, the defendant stated he was guilty because he was guilty and was aware of the rights he was giving up. The record demonstrates that the admission of guilt was not accompanied by protestations of innocence. The People also argue that the defendant’s criminal history underscores his familiarity with the criminal justice system. Pursuant to C.P.L. §220.60(3) “[a]t any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty…to withdraw such plea…” Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement” (People v. Smith, 54 AD3d 879, 880 [2nd Dept. 2008]). A defendant’s guilty plea will be upheld if it is a voluntary and intelligent choice made with the understanding of the various alternative courses of action available (Hill v. Lockhart, 474 U.S. 52, 56 [1985]); People v. Fiumefreddo, 82 NY2d 536 [1993]). Whether the defendant has entered the plea voluntarily, knowingly and intelligently is committed to the court’s sound discretion exercised in cases on an individual basis (People v. Fiumefreddo, 82 NY2d 536 (citing People v. Nixon, 21 NY2d 338, 355; People v. Scialphi, 78 AD2d 569 [1991])). There must be more than unsubstantiated protestations of innocence or conclusory self-serving allegations that the plea was the product of a misunderstanding of its consequences (People v. Cummings, 53 AD3d 587 (2nd Dept. 2008)). In the case at bar, the record is clear that the defendant voluntarily, knowingly and intelligently entered the guilty plea. It is unclear to the Court why defendant’s former attorney, Joseph Goubeaud, has not submitted an affidavit in support of the motion. He is the attorney with first hand knowledge of the circumstances surrounding the plea negotiations and allocution. The defendant expressed no dissatisfaction with his counsel at the time of the plea (see People v. Douglas, 83 AD3d 1092, 1093 [2nd Dept. 2011]). When defendant was asked by the Court if he was fully satisfied with Mr. Goubeaud’s representation, he replied “Yes”. He stated that he was pleading guilty because he was guilty and that he had reviewed the Misdemeanor Waiver of Rights Form and signed it in open court. Defendant received a favorable plea deal, reduction of felonies to a misdemeanor, with the aid of competent legal counsel and avoided a longer incarceration sentence, and there is nothing in the record which casts doubt on the apparent effectiveness of counsel (see People v. Henry, 95 NY2d 563, 565 [2000]). Defendant’s claim of unfamiliarity with the criminal justice system and plea procedures is simply not credible in light of his extensive criminal history. Since defendant’s current attorney is the only individual from whom evidence substantiating defendant’s claim that Mr. Goubeaud failed to properly advise him of the consequences of his guilty plea can be adduced, and no affidavit from Mr. Goubeaud has been provided in support of defendant’s motion, defendant has failed to meet his burden of establishing ineffective assistance of counsel. Defendant’s motion is based solely upon unsupported self-serving statements. Assuming arguendo that defendant satisfied his burden of asserting sufficient factual allegations, which he did not, his ineffective assistance of counsel claim is nevertheless without merit. To prevail on an ineffective assistance of counsel claim, a defendant must be able to show both that the counsel’s performance fell below an objective standard of reasonableness and prejudiced the defendant (Strickland v. Washington, 466 U.S. 668 [1984]). The performance and prejudice prongs of Strickland may be addressed in either order (People v. Rosales, 24 Misc 3d 1236A [Sup. Ct. Bronx Cty. 2009]). In the context of a plea, the prejudice prong “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process (Hill v. Lockhart, 474 U.S. 52 [1985]). Defendant must be able to show that there is a reasonable probability that, but for counsel’s omission or error, he would have pleaded not guilty and would have insisted on proceeding to trial (Id). In order to establish that the defendant would have insisted on going to trial, an affidavit providing sufficient factual allegations must be submitted to the court (People v. McDonald, 1 NY3d 109 (2003)). Some of the factors that must be set out in such an affidavit are the strength of the prosecutor’s case, the availability of a defense, the likelihood of success at trial, a comparison of the sentence promised with the potential incarceration the defendant faced if convicted after trial, counsel’s advice as to the reasons to accept the plea bargain, and a reason why the defendant admitted committing the act (Id.). An unsubstantiated claim that the defendant would have insisted on proceeding to trial is insufficient (People v. Melio, 304 AD2d 247 (2nd Dept. 2003); cf. People v. McKenzie, 4 A.D3d 437 (2nd Dept. 2004)). There must be specific factual allegations supporting such a claim, or an explanation for defendant’s inability to provide the same (McDonald at 115). Once again, defendant’s allegation of being misinformed about the length of incarceration is made solely by him and belied by the record. At the plea allocution, defendant stated that he understood that by entering a plea of guilty he would be waiving his right to a jury trial and right to appeal. Counsel noted that the defendant had authorized him to enter a plea of guilty, with a promised sentence of nine months incarceration. The defendant stated on the record during the voir dire examination with Assistant District Attorney Graham Chapman that he was pleading guilty because he was guilty and waiving his rights thereunder. Based upon the foregoing, the Court finds that the defendant knowingly, voluntarily and intelligently entered a guilty plea (People v. Sougou, 26 NY3d 1052 [2015]; People v. Hutchinson, 61 Misc 3d 153(A) [2018]). Accordingly, the motion to vacate the plea pursuant to C.P.L. 220.60(3) is denied. This constitutes the Decision and Order of this Court. Dated: September 3, 2019 Mount Vernon, New York
