DECISION AND ORDER OF THE COURT The indictment charged the defendant with Burglary in the First Degree (PL§140.30[2], Burglary in the Second Degree (PL §140.25[2], Assault in Second Degree (PL §120.05[2], two counts of Criminal Contempt in the First Degree (PL§§215.51[b][i],[v], Criminal Obstruction of Breathing or Blood Circulation (PL §121.11), Criminal Mischief in the Fourth Degree (PL §145.00[1]), Endangering the Welfare of a Child (PL §260.10[1]), Petit Larceny (PL §155.25) and Criminal Contempt in the Second Degree (PL §215.50[3]. On April 19, 2023, the defendant plead guilty to Assault in the Second Degree (PL §120.05[2]), a class D violent felony offense. In accordance with a negotiated plea agreement between the defendant and the People, the promised sentence was five years of incarceration followed by five years of post-release supervision. Represented by new counsel, the defendant now moves to withdraw his guilty plea. In support of his motion, he claims that counsel at the time of his plea was ineffective. He also contends that his plea was not knowing, voluntary and intelligent. The defendant claims his plea was coerced by his counsel. The defendant claims his former attorney told him “it was a good idea [to plead guilty]. He also told me that if I did not take this plea deal, I would be looking at twenty plus years in prison. He also told me that this offer was going to be the best I would get and that he did not want to go to trial.” (aff of defendant 6) He also claims when he entered his plea he was confused because he suffers from mental illnesses, learning disabilities and has only a ninth grade education. These contentions also form the basis of his claim that his plea was not knowing, voluntary and intelligent. To this end, he notes that he rejected the same plea offer made by the prosecution fifteen days earlier, on April 4, 2023, when the case was sent to this court for trial. On April 4, 2023, the prosecutor told the court that she made an offer to the defendant that involved a plea to a D felony with five years of incarceration followed by five years of post-release supervision. (tr at 2) The defendant, through his attorney, rejected the offer. The court told the defendant that the court had learned that the defendant’s attorney was seeking a better offer from the prosecutor. The court, to accommodate the ongoing plea discussion, adjourned the case for April 19, 2023, when either a plea would occur or a trial would begin. (tr at 3-6) On April 19, 2023, the prosecutor informed the court that their final offer remained the same, a plea to Assault in the Second Degree with a period of incarceration of five years followed by five years of post-release supervision. The defendant, without prompting, then told the court “I am going to take five years.” (tr at 4) The court then recessed for the lunch hour and advised the defendant “…in the afternoon, if you decide that you do not want to take the plea…then we will proceed with the trial preliminaries and start jury selection tomorrow morning. You understand? The defendant replied “Yes.” With respect to his ineffective assistance of counsel claim, he argues that counsel failed to advise him of the potential immigration consequences of pleading guilty to a violent felony offense. Pursuant to CPL §220.60(3), “At any time before the imposition of sentence, the court in its discretion may permit a defendant who entered a plea of guilty to…part of the indictment…to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored.” Whether to grant such a motion rests in the trial court’s sound discretion. (People v. Ward, 140 AD3d 903, 904 [2d Dept 2016].) Indeed, in deciding such motions “the nature and extent of the fact-finding inquiry rests largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances.” (Id. [quoting People v. Howard, 109 AD3d 487, 487 [2d Dept 2013.]) Where a claim in support of a motion to withdraw a guilty plea relies on the defendant’s allegations, the court may reject those allegations on the basis that they are contradicted by the record. (see People v. Jackson, 170 AD3d 1040, 1040-41 [2d Dept 2018]; Ward, 140 AD3d at 904.) Here, the defendant’s claims do not warrant an evidentiary hearing, because they are belied by the record. Although the defendant now claims he was coerced by counsel into pleading guilty to Assault in the Second Degree, he stated the opposite when the court inquired about counsel’s services. The Court: Back on the record. Mr. Ramroop, your attorney, Mr. Mossa, indicated to me that you wish to plead guilty. Under the law, I must decide whether to accept your plea of guilty or not to accept it. In order to make the decision, I must ask you certain questions, sir. Listen carefully to all the questions and conditions. Before you answer a question, talk to your lawyer about the question and then answer the question. Do You understand? The Defendant: Yes, Your Honor. The Court: Have you spoken to your lawyer about this case and whether to plead guilty or not? The Defendant: Yes. The Court: Are you satisfied with the services of your attorney, Mr. Mossa, in this matter? The Defendant: Yes, your Honor. The Court: Mr. Ramroop, at this time are you under the influence of any alcohol, prescribed medications or unprescribed medications that would affect your ability to answer my questions truthfully? The Defendant: No, your Honor. The Court: You’re asking to plead guilty to Assault in the Second Degree, a class D violent felony, under count number three of Indictment Number 72140 of 2022 in full satisfaction of this matter and this case. Is that what you wish to do ? The Defendant: Yes, your honor. Defendant then plead guilty to Assault in the Second Degree (Penal Law §120.05[2]). The court again asked the defendant if he wanted to plead guilty to assault in the second degree and the defendant stated he wanted to plead guilty. (tr at 8- 9) Further, the court also gave the defendant ample opportunity to voice any concerns that he was being coerced into pleading guilty. On the date he entered his plea of guilt, the defendant made it very clear, under oath, that he did not believe he was being coerced by his attorney in any way: The Court: Now, Mr. Ramroop, other than the plea and sentence agreement that has been placed on the record, anybody made any other promises, commitment or representation of any kind to you to get you to plead guilty, sir? The Defendant: No, your Honor. The Court: Anybody force or threaten or pressure you to plead guilty against your own free will? The Defendant: No. The Court: Have I or your lawyer or anybody else said anything to you to have you plead guilty against your own free will? The Defendant: No. The Court: Are you pleading guilty voluntarily of your own free will and choice? The Defendant: Yes. Here, the defendant had ample opportunity to alert the court that his attorney had coerced, forced or unduly pressured him to enter is plea. This colloquy completely refutes the defendant’s claim that his plea was coerced. The defendant alleges that his former attorney told him in substance that it would be a good idea if he plead guilty, otherwise he was looking at twenty years in prison. He further alleges his attorney told him the offer was going to be the best he could get and that he, his attorney, did not want to go trial. The defendant’s contends those statements by his former attorney coerced him into taking the plea. His claim is unavailing. “The mere fact that defense counsel may have advised [the defendant] to plead guilty and the risks of trial, including the possible maximum sentence if he was convicted, is insufficient to establish ineffective assistance of counsel or coercion” (see People v. Ballard, 200 AD3d 1476, 1477 [3d Dept 2021]; People v. Bhuilyan, 181 AD3d 699, 700 [2nd Dept 2020] quoting People v. Munn, 32 AD3d 865, 866; People v. Bush, 132 AD3d 691, 692 [2nd Dept 2015]). In a different regard, the plea colloquy regarding the defendant’s plea, the trial rights he forfeited by pleading guilty, the waiver of the right to appeal, and the conditions of the plea also demonstrate that the defendant’s conclusory claims that the effect of his mental illnesses, learning disabilities and lack of a higher education on the voluntariness of his plea are meritless. Contrary to his claims, unsupported by any medical or other relevant documentation, the plea record demonstrates that the defendant engaged meaningfully with the court during the plea proceeding and gave answers that reflected an understanding of the proceedings. Accordingly, his active participation in his plea proceedings contradict his claims. His answers belied any notion that his alleged mental illnesses, learning disabilities or lack of a higher education had any effect on the voluntariness of his plea. Importantly, the substance of his plea allocution as a whole makes clear that the defendant’s plea was voluntary, knowing and intelligent. As for the defendant’s claim that his attorney failed to discuss the immigration consequences of his plea with him, the defendant has not submitted an affidavit from his former attorney nor has he explained what efforts he made to secure one. Even if the defendant’s claim is true that his former counsel failed to advise him of the immigration consequences of his plea, the plea proceeding reflects that the court advised him at length of the immigration consequences of his plea. Further, the court also gave the defendant ample opportunity to voice any concerns he may have had as to the plea’s immigration consequences or to withdraw his plea altogether. The court specifically advised the defendant that he would be subject to deportation, exclusion from admission to the United States and denial of naturalization as a result of this plea. The defendant told the court that he understood. The court also asked the defendant if he understood “that neither his attorney or the court or anyone else could guarantee that he would not be deported or excluded from the United States or denied naturalization if he were not a United States citizen.” The defendant again told the court he understood. The court also asked the defendant that “[i]f your deportation, exclusion from the United States or denial of naturalization is ordered….because of this plea, you will not be permitted to have the plea set aside.” The defendant again told the court he understood. The court again asked the defendant if he wanted to plead guilty knowing that the plea may result in his deportation or exclusion from the United States or denial of naturalization. (tr at 16) Thus, the defendant was indisputably aware of the possible immigration consequences the plea presented before pleading guilty. Defendant, under these circumstances cannot show prejudice resulting from his attorney’s alleged failure to provide that advise himself. (see People v. Facey, 180 AD3d 927, 929 [2nd Dept 2020]; People v. Rodriguez, 150 AD3d 1029 [2nd Dept 2017]; People v. Rampersaud, 121 AD3d 721 [2nd Dept 2014]). For all these reasons, the defendant’s motion to withdraw his guilty plea is denied. This constitutes the decision and order of the court. The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney. Dated: December 11, 2023
