| People v Vargas |
| 2019 NY Slip Op 05023 [173 AD3d 1466] |
| June 20, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Dimas Vargas, Appellant. |
Thomas P. Theophilos, Buffalo, for appellant.
Letitia James, Attorney General, New York City (Nikki Kowalski of counsel), forrespondent.
Lynch, J. Appeal, by permission, from an order of the County Court of Broome County(Dooley, J.), entered February 2, 2017, which denied defendant's motion pursuant to CPL 440.10and 440.20 to vacate two judgments of conviction and to set aside the sentences, without ahearing.
Following an undercover investigation, which included controlled buys of cocaine fromdefendant and a coordinated traffic stop of defendant's vehicle that resulted in the seizure of aquantity of cocaine, defendant was charged in a 32-count indictment with conspiracy and variousdrug-related offenses (hereinafter the first indictment). While released on bail, defendant wascharged in a five-count indictment with criminal possession of a weapon in the second degree,criminal possession of a weapon in the third degree, reckless endangerment in the first degree,assault in the third degree and perjury in the first degree stemming from a shooting incident(hereinafter the second indictment). Following a jury trial on the second indictment, defendantwas convicted as charged.
Prior to sentencing, the People offered defendant a plea bargain regarding the firstindictment, which would require him to plead guilty to two counts of criminal sale of acontrolled substance in the third degree and one count of endangering the welfare of a child infull satisfaction of the first indictment in exchange for a prison term of 18 years, to be servedconcurrently with the sentences to be imposed for his convictions on the second indictment.Defendant rejected the plea offer and also waived his right to a jury trial on the first indictment.Following a nonjury trial, defendant was convicted of conspiracy in the fourth degree, 11 countsof criminal sale of a controlled substance in the third degree, 13 counts of criminal possession ofa controlled substance in the third degree and three counts of criminal possession of a controlledsubstance in the fourth degree. Defendant was sentenced on the second indictment, as a secondfelony offender, to a prison term of 14 years for his conviction of criminal possession of aweapon in the second degree, as well as to other lesser concurrent sentences, together with aconsecutive prison term of 2 to 4 years for his conviction of perjury in the first degree, to befollowed by five years of postrelease supervision. Regarding the first indictment, defendant wassentenced to prison terms of seven years each for two of his convictions of criminal sale of acontrolled substance in the third degree, to be served consecutively to each other and to thesentences imposed on the second indictment, as well as to other lesser concurrent sentences. Onappeal, defendant's judgments of conviction were affirmed by this Court (72 AD3d 1114,1114-1121 [2010], lv denied 15 NY3d 758 [2010]; 60 AD3d 1236, 1240 [2009], lvdenied 13 NY3d 750 [2009]).
In July 2016, defendant moved, pursuant to CPL 440.10 and 440.20, to vacate the judgmentsof conviction and to set aside the sentences on the basis that his trial counsel was ineffective.Specifically, defendant maintains that counsel's erroneous advice that the People were required toproduce the cocaine allegedly sold or possessed for each relevant count of the first indictment ledhim to reject the more favorable plea offer and waive his right to a jury trial. County Courtdenied the motion without a hearing. Defendant now appeals, with permission, from the orderdenying his postconviction motion.
We conclude that County Court properly denied defendant's postconviction motion without ahearing. "On a motion to vacate a judgment of conviction, a hearing is only required if thesubmissions show that the nonrecord facts sought to be established are material and would entitlethe defendant to relief" (People vBrandon, 133 AD3d 901, 903 [2015] [internal quotation marks, brackets and citationsomitted], lv denied 27 NY3d 992 [2016]; see CPL 440.30 [5]; People v Blackman, 166 AD3d1321, 1322 [2018]). A court may deny a vacatur motion without a hearing if it is based onthe defendant's self-serving claims that are contradicted by the record or unsupported by anyother evidence (see People vGuynup, 159 AD3d 1223, 1225 [2018], lv denied 31 NY3d 1082 [2018]; People v Lewis, 138 AD3d 1346,1349 [2016], lv denied 28 NY3d 1073 [2016]). In support of his motion to vacate thejudgments of conviction, defendant tendered his own affidavit, wherein he asserted that, after thePeople put forth a plea offer, defendant asked his trial counsel "whether or not the [P]eople hadto produce the drugs at trial in order to convict [him] of any of the drug offenses" and trialcounsel ostensibly stated that "the [People] had to produce the drugs." Defendant thereafterrequested and was allowed to listen to the wiretap recordings implicating him in the drug-relatedcrimes before making a final determination on the plea offer. Defendant asserted that trialcounsel confirmed, once again, that the People had to produce the drugs at trial. Defendantmaintains that, based on this advice, he rejected the plea offer and waived a jury trial on the firstindictment.
"It is well settled that a defendant is entitled to the effective assistance of competent counselat the plea negotiations stage" (People vBank, 28 NY3d 131, 137 [2016] [citation omitted]; see People v Brett W., 144 AD3d 1314, 1315 [2016]; People v Curry, 123 AD3d 1381,1382 [2014], lv denied 25 NY3d 950 [2015]). "[A] court may direct the People to reoffera prior, more favorable plea offer on ineffective assistance of counsel grounds only if [the]defendant demonstrates (1) the existence of a prior, more favorable plea offer, (2) a reasonableprobability that, but for defense counsel's conduct, he or she would have accepted the prior pleaoffer, (3) a reasonable probability that the agreement would have been presented to and acceptedby the court and (4) that the conviction and/or sentence under the terms of the plea offer wouldhave been less severe than the conviction and sentence ultimately imposed" (People v McGee, 166 AD3d 1390,1392 [2018] [citations omitted]; see Lafler v Cooper, 566 US 156, 164 [2012]; People v Rudolph, 170 AD3d1258, 1262-1263 [2019]).
We are not persuaded by defendant's self-serving argument (see People v Guynup,159 AD3d at 1225; People v Lane,83 AD3d 1118, 1119 [2011], lv denied 17 NY3d 818 [2011]; People v Hoffler, 74 AD3d 1632,1635 [2010], lv denied 17 NY3d 859 [2011]; People v Santiago, 227 AD2d 657,658 [1996]). Prior to trial, trial counsel submitted a legal memorandum addressing whetherpossession and sale of a controlled substance can be proven by circumstantial evidence. In thememorandum, trial counsel recognized that possession and sale may be proven by circumstantialevidence, but asserted that in this particular case, the People should not be allowed to use a drugaddict to prove circumstantially that the particular substance that defendant possessed and/or soldwas an illegal drug because such testimony was unreliable and the People did not possess othercorroborating evidence. Further, at the onset of trial, trial counsel acknowledged, in response toan inquiry by County Court, that if the People provided a proper foundation, a drug addict couldtestify to identify a particular substance. Overall, the record reflects trial counsel's strategy ofshowing that the testimony of a drug addict as to what defendant possessed and/or sold wasunreliable, and defendant failed to identify any evidence in the record to show that trial counseladvocated that the People must produce the drugs in order to convict him. Although trial counselstated in a letter responsive to the motion to vacate that he no longer had access to defendant'sfile due to changing firms and had no independent recollection of telling defendant that thePeople had to produce the drugs at trial, he speculated that, if he believed that were the case, hewould have objected and moved to dismiss the drug-related counts on evidentiary grounds.
We agree with County Court that it is implausible that trial counsel would advise defendantinconsistently off the record given the arguments he was making before the court. That is all themore so because, with respect to the first indictment, we upheld his convictions for criminal salein the third degree and conspiracy in the fourth degree, finding that the evidence established that"defendant made 'a bona fide offer to sell' indicating both the intent and the ability to proceedwith the sale" (72 AD3d at 1117-1118, quoting People v Mike, 92 NY2d 996, 998[1998]). Such convictions do not require proof that the defendant actually possessed thecontraband (see 72 AD3d at 1117-1118). The record further shows that defendant hadother reasons to reject the plea offer, as he had previously stated that he was willing to pleadguilty to the drug-related charges in the indictment, but not to the entire indictment, and that hewould accept a plea agreement with a prison term of 15 years, not 18 years (see People v Fernandez, 5 NY3d813, 814 [2005]).
Defendant's contention that his affidavit was corroborated by his questions to County Courtalso lacks merit. Following a suppression hearing and after waiving a jury trial on the firstindictment, defendant asked County Court whether, for his drug-related charges, he had "the rightto see these drugs" or whether it would have been sufficient to only show that he sold the drugsto a person. County Court told defendant to speak with trial counsel and also informed him that"[t]he People are going to have to prove beyond a reasonable doubt in each and every allegedcount of sale that cocaine was sold and that, in fact, it is cocaine." Defendant then inquiredwhether the People "have to present cocaine to the [c]ourt to show that [he] sold cocaine," towhich County Court replied, "Yeah. Yeah." This colloquy does not corroborate defendant'sallegations that trial counsel provided him with improper advice. Defendant's questions indicatethat he was inquiring into whether the People needed to produce the drugs or whether testimonyfrom an informant would be sufficient. Although it is not clear whether County Court properlyunderstood defendant's follow-up question, the court properly stated that the People have to showthat defendant sold cocaine and asked defendant to consult his trial counsel. Defendant'sremaining contentions, to the extent not discussed herein, have been considered and found to belacking in merit.
Egan Jr., J.P., Devine, Aarons and Rumsey, JJ., concur. Ordered that the order isaffirmed.