In an action of unjust conviction against the state, claimant entered a plea of guilty to the reduced charge of attempted rape in the first degree in satisfaction of indictment, charging him with rape in the first degree, sodomy in the first degree and sexual abuse in the first degree.
A New York Criminal Lawyer said three weeks after it was entered, claimant moved to vacate his plea on the ground that it “was involuntary and was taken only because of the enormous pressure put upon him by former legal aid counsel and his supervisor from the legal aid society.” The supporting affidavit further alleges that, from the outset, claimant had told his Legal Aid attorney, “I did not want to hear from him about taken a plea that I believed my innocence could and would be proven in court.” Claimant describes the performance of his attorneys as coercive and also ineffective, and asserts that counsel should have withdrawn from claimant’s defense. Significantly, the affidavit makes no mention of any coercion on the part of the court.
A New York Criminal Lawyer said that, respondent Britt’s portrayal of events in general, and particularly those surrounding the entry of his guilty plea, is distorted and self-serving. An examination of the circumstances culminating in the motion to vacate his plea demonstrates that claimant’s allegations of coercion, ineffective representation and unfair surprise are contradicted by the record.
On the trial, defense counsel was asked why he had arrived late. Counsel stated to the court that he “was in the pens with the defendant (claimant) a good part of the morning along with the Legal Aid supervisor.” Asked if his client was considering a guilty plea, counsel stated that there was an offer that had been made earlier of a felony and three to six, to which the Assistant District Attorney in attendance responded, “That was made back in July.” Counsel then stated that the prosecutor “told me this morning he could have it if it was before hearings and trial started.” Informed that the defendant “wants to think it over at least overnight,” the court put the matter over to the following day, stating, “You’ll let me know whether he’s going to take it or not.” The record does not contain the minutes of any proceedings conducted on the stated adjourned date. However, on January 18, the record reflects that claimant was “considering the plea of three to six.” On February 4, 1991, the attorney who appeared for the Legal Aid Society to report that defense counsel was currently engaged stated, “I know there was an offer in this case but there’s no possibility of a disposition.”
On Monday, a New York Drug Possession Lawyer said the claimant was produced for hearing and trial. In answer to the People’s declaration of readiness, claimant’s first words were “I’m not ready yet.” In response to defense counsel’s statement that he would be ready for trial in two days, claimant said, “No we will not. You just told me you didn’t want to go to trial.” Counsel then stated, “I will be ready to try this case Wednesday.” Following more accusations by claimant that his attorney doesn’t seem to want to take this case to trial, the court asked, “You definitely want to go to trial, is that it?”, to which claimant answered, “Yes. But I’m not ready to go to trial,” alleging an inability to contact a brother in Virginia who was to locate character witnesses. Acceding to claimant’s request for a little longer adjournment, the matter was set down for trial on Wednesday, March 6. Proceedings on March 6 began with counsel’s announcement that the “defendant has an application to have me relieved from the case.”
Thereafter, claimant filed a motion to vacate his guilty plea was grounded on the pressure alleged to have been applied by his Legal Aid lawyers, not by the court. Similarly, in its order ultimately vacating the plea, Supreme Court determined that counsel’s reluctance, dereliction’s, or incompetence made his client unfit to properly and fairly consider the plea offered, or consider it from a fair and sound position. The Court of Claims, however, selectively quoting from the colloquy set forth above, concluded that claimant satisfies paragraph (b) of § 440.10.1 of the Criminal Procedure Law for the purposes of § 8-b of the Court of Claims Act. In other words, the Court of Claims found that Supreme Court’s remarks constitute duress, misrepresentation or fraud on the part of the court. Thus, granted so much of claimant’s cross motion for summary judgment as sought leave to amend claimant’s claim.
A New York Sex Crimes Lawyer said that, claimant alleges that the original offer of 3 to 6 years penalty for the sex crime, in exchange for a guilty plea to a reduced count was withdrawn at the last minute; that he was unfairly surprised by the new offer of 4 to 8 years; that he had insufficient time to consider the plea; that it was always his intent to proceed to trial; that his waiver of the right to trial was ineffective because he was not aided by effective counsel upon entering his plea; and that his freedom of choice was overcome by the court’s threat to impose a sentence for the sex crime near to the maximum should he be convicted after trial.
The State of New York appeals from an order the Court of Claims, denying its motion for summary judgment dismissing the claim against it on the ground that claimant fails to meet the statutory criteria to maintain an action for wrongful conviction.
The issue in this case is whether claimant is entitled to his action for unjust conviction on the ground that claimant was coerced by the trial court into entering a plea of guilty to the charge of attempted rape in the first degree.
Upon review of the record in this case, the Court finds the evidence insufficient to support the proposition, advanced by claimant, that he was coerced by the trial court into entering a plea of guilty to the charge of attempted rape in the first degree. While there is evidence indicating that claimant’s assigned counsel had difficulty communicating with his client, the record reflects that the difficulty resulted from claimant’s vacillation and duplicity, not from counsel’s unwillingness or inability to represent his client’s interests. In any event, ineffective assistance of counsel is not a predicate for a claim under the Unjust Conviction and Imprisonment Act (Court of Claims Act). Furthermore, suit is barred where the conviction was brought about by the claimant’s chosen strategy. Therefore, the Court conclude that claimant has failed to fulfill the statutory prerequisites to prosecution of this claim.
To maintain an action for unjust conviction against the State within the ambit of Court of Claims Act § 8-b (3) (b) (ii), “claimant must establish by documentary evidence that his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed” on one of the grounds stated in CPL 440.10 (1) (a), (b), (c), (e) or (g). As pertinent to the facts of this case, claimant must show that: “(b)The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor”.
As he alleges no prosecutorial misconduct, in order to proceed, claimant must demonstrate that the court employed “duress, misrepresentation or fraud” in obtaining his plea of guilty to the reduced charge. The statutory pleading requirements are explicit: The claim shall state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (b) he did not by his own conduct cause or bring about his conviction. The claim shall be verified by the claimant. If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state. Thus, if it appears that the claimant will not be able either to establish his innocence or to demonstrate that conviction was not the result of “his own conduct”, the claim must be dismissed.
The Court of Claims’ last basis for finding the guilty plea to have been coerced is based upon Supreme Court’s refusal to grant claimant’s motion to relieve defense counsel. While the Court of Claims made only a brief reference to the hearing held by Supreme Court on this motion, claimant now advances the proposition that allowing him to enter a plea without substitution of counsel was coercive because counsel’s representation was ineffective. This is a patent attempt to avoid the statutory preclusion of a claim predicated on ineffective assistance of counsel. Moreover, the admissible evidence contained in the record before this Court that defense counsel was less than effective comes chiefly from claimant himself. Even if this claim were not barred by statute, claimant would be hard pressed to consign blame for the entry of his guilty plea on the ineffectiveness of his attorney. The merit of any asserted shortcomings of counsel notwithstanding, claimant has simply failed to demonstrate that he possessed a viable defense to put forward at trial. In his affidavit in support of the motion to vacate the plea, claimant does not deny sexual contact with the complainant; he maintains only that intercourse was consensual.
Vacillation between entering a plea and proceeding to trial was a strategy claimant employed for eight months prior to pleading guilty, and it was promptly resumed only a few weeks later by his motion to vacate that plea. As claimant concedes in his brief: innocence is the linchpin of the Court of Claims Act § 8-b. The purpose of the statute was to provide a remedy for unjustly convicted, innocent persons. This Court can now add that the purpose of the statute is not to provide a windfall to a criminal defendant who is sufficiently experienced with the judicial process to exploit it to his own advantage.
The Court held that, claimant has failed to meet the statutory criteria to pursue this claim for unjust conviction. First, he has not established coercion on the part of the court second, if the People cannot establish claimant’s guilt in the absence of the complaining witness, neither can claimant show that he will be able to demonstrate his innocence for purposes of satisfying the statutory prerequisite to suit. Granted, the test does not require documentary evidence of innocence at this preliminary stage of the proceedings. Nevertheless, it is appropriate to dismiss suits such as this where the claimant can point to no means by which he might be able to meet the strict condition imposed for recovery of damages that innocence be established “by clear and convincing evidence”. Contrary to claimant’s contention, the dismissal of the indictment against him does not serve to demonstrate that he is innocent; it merely indicates that, without the testimony of the complaining witness, the People are unable to establish his guilt. Third, his guilty plea was merely part of a strategy to delay trial. Finally, ineffective assistance of counsel is not a basis for recovery under the statute. From the record before this Court, it is clear that claimant’s chosen strategy of delay, distort and disrupt, and not any pressure applied by Supreme Court or counsel, culminated in the entry of his guilty plea. Accordingly, the order of the Court of Claims of the State of New York, which denied defendant’s motion to dismiss the claim and which granted so much of claimant’s cross motion for summary judgment as sought leave to amend his claim, should be reversed, on the law and the facts, without costs, and the claim dismissed.
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