The opinion of the court was delivered by: John H. Wilson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
On February 12, 2008, Defendant was charged with Operating a Motor Vehicle While Intoxicated (VTL Sec. 1192.3), an Unclassified Misdemeanor, and related charges. On February13, 2008, Defendant entered a plea of guilty to the above-stated count of the Criminal Court Complaint, and received a sentence of a Conditional Discharge. The conditions of Defendant's discharge were that he pay a fine of $500.00, attend the Drinking and Driving Program, and be screened for alcohol and substance dependency at the New York State Department of Motor Vehicles. A surcharge in the amount of $185.00 was also imposed, and the Defendant's New York State Driver's License was suspended for a period of 6 months.
To date, Defendant has not appealed his conviction.
By motion dated June 9, 2008, Defendant movespursuant to CPL Sec. 440.10(h)*fn1to vacate his conviction on two grounds. He asserts that he received ineffective assistance of counsel, and that due to his inability to understand the plea and sentence proceedings, his right to Due Process was violated.
Attached to his motion papers is Defendant's Affidavit, wherein he states that due to his Jamaican heritage, he speaks English with a heavy accent, and "when people do not speak slowly and clearly, I often have difficulty understanding what American born people are trying to say to me." Defendant also asserts that he did not understand "what the Legal Aid Attorney was asking me," and agreed to "whatever terms the Judge demanded in order to go home and avoid jail."
The People's Response, dated September 5, 2008, states that the Defendant "accepted the Judge's offer knowingly, voluntarily, and of his own free will." The People also assert that Defendant received the effective assistance of counsel because his attorney "negotiated a non-jail disposition sentence," when "defendant was facing a potential jail sentence of one year if convicted of all the charged offenses after trial."
Moreover, the People note that Defendant was familiar with court proceedings since the Defendant had a prior conviction for Driving While Impaired (VTL Sec. 1192.1).
The Court has also reviewed an Affirmation dated November 10, 2008 from the attorney who represented Defendant at his plea and sentence, in which she states that while she "does not recall the specifics of my conversation" with the Defendant, "I have many Caribbean clients, and the Jamaican accent is no impediment."
For the following reasons, Defendant's motion is hereby denied.
DEFENDANT RECEIVED THE EFFECTIVE ASSISTANCE OF COUNSEL, ANDWAS NOT DENIED HIS RIGHT TO DUE PROCESS
Before addressing the merits of Defendant's motion, this Court finds that a formal hearing in this matter is unnecessary. This Court presided over Defendant's plea and sentence. As such, this Court may be "presumed to be fully familiar with all aspects of the case.'" See, People v. Demetsenare, 14 AD3d 792, 793 (3d Dept., 2005) citing People v. Loomis, 256 AD2d 808, 808-809 (3d Dept., 1998), lv. den. 93 NY2d 854 (1999). This Court has also reviewed the record of the underlying proceedings, as well as the statements of the relevant parties. Therefore, no formal hearing is necessary. See, also, People v. Robetoy, 48 AD3d 881, 883, 851 NYS2d 297 (3d Dept., 2008).
Defendant states that he met his "Legal Aid Attorney shortly before" his case was called. He claims to have had difficulty understanding "what she was trying to say," and claims further that the attorney also had difficulty "understanding what I was trying to say." He asserts that the attorney "was forced to repeat her questions."
Defendant also states that during his initial meeting, he had no conversation with the attorney regarding "the terms of any plea agreement," and that when he was before the court for arraignment, he "did not understand most of the legal terms that were said." Nonetheless, Defendant states that he "nodded and said ...