| People v Deyo |
| 2011 NY Slip Op 02490 [82 AD3d 1503] |
| March 31, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Michael Deyo, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
McCarthy, J. Appeals (1) from a judgment of the County Court of Greene County (Bartlett,III, J.), rendered February 29, 2008, convicting defendant upon his plea of guilty of the crime ofassault in the first degree, and (2) by permission, from an order of said court, entered February12, 2010, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction, without a hearing.
Defendant was indicted on one count of assault in the first degree based on allegations that,during a fight, he and James Pine acted in concert with one another and caused serious physicalinjuries to the victim. Those injuries ultimately resulted in the victim's death.[FN1]Defendant pleaded guilty to the indictment, without any plea agreement, and was sentenced toeight years in prison, followed by five years of postrelease supervision. He appeals.
Thereafter, defendant moved, pursuant to CPL 440.10, to vacate his conviction and [*2]withdraw his plea, alleging that he was deprived of the effectiveassistance of counsel. County Court denied that motion without a hearing. By permission of thisCourt, defendant also appeals from the order denying his motion.
Addressing defendant's direct appeal, he entered his plea knowingly, voluntarily andintelligently. The factual recitation of the plea was sufficient to establish defendant's commissionof the crime (see People vCampbell, 66 AD3d 1059, 1060 [2009]; see also People v Lopez, 71 NY2d 662,666 n 2 [1988]), and defendant did not make any statements during the allocution that wereinconsistent with his guilt (see People vLopez, 74 AD3d 1498, 1499 [2010]). County Court did not explain the meaning of legalterms, such as acting in concert, but the court did advise defendant to speak up if he hadquestions or did not understand something during the proceeding. Defendant never asked forclarification. Additionally, the court asked defendant whether he had discussed the plea withcounsel, was satisfied with counsel, knew his rights, understood the plea, and was pleading guiltybecause he wanted to, not because he was forced or was afraid of anything. Nothing in the recordat the time of the plea discloses that his plea was unknowing or involuntary, or that it wasrendered so due to counsel's representation (see People v Shovah, 67 AD3d 1257, 1258 [2009], lvdenied 14 NY3d 773 [2010]). Accordingly, we affirm the judgment of conviction.
Turning to defendant's CPL 440.10 motion, we find that he was entitled to a hearing toaddress certain of his allegations. Defendant alleges that counsel did not adequately engage inplea negotiations. A letter from counsel provided defendant with three options: accept a pleaoffer from the People in exchange for a 10-year sentence, plead guilty to the indictment with nosentencing recommendation, or proceed to trial. This is the only written proof of any pleanegotiations. Defendant declined the 10-year plea deal and desired a trial, but alleges that heultimately pleaded guilty because counsel informed him that there was no way to win at trial.After the plea was entered, counsel arranged for defendant to cooperate with the People andtestify against Pine, but no formal cooperation agreement was executed. Defendant avers thatcounsel told him that the People would recommend a five-year sentence in exchange for histestimony, but that the People did not want that agreement in writing because it would have to bedisclosed to Pine's lawyer. Defendant and his father aver that they believed, after meeting withprosecutors, that the People would recommend the minimum sentence after Pine's trial.
At oral argument on the motion, the District Attorney stated that he believed counsel's lettermisstated the plea offer, with his recollection being that the offer of a 10-year sentencingrecommendation was conditioned on defendant cooperating against Pine. He implied that counseldid not further negotiate because no better offer would have been forthcoming.[FN2]The District Attorney never specifically responded to the allegations regarding whether heoffered, post-plea, to recommend a five-year sentence in exchange for defendant's cooperation, orthat his office would not put a cooperation agreement in writing. There is no response todefendant's allegations that counsel misinformed him of the plea offer. The circumstances raisequestions as to whether counsel adequately engaged in negotiations, both pre- and post-plea,regarding the People's sentencing recommendation, whether defendant was correctly informed ofthe initial plea offer and whether he was accurately advised of the benefit (if any) he wouldreceive from his cooperation against Pine, so that he could render knowing decisions aboutwhether to enter a [*3]plea without a plea bargain and whether tocooperate.
Defendant also raised factual questions regarding whether counsel conducted an adequateinvestigation into, or was aware of, the relevant facts when advising defendant. Counsel's file didnot contain some of defendant's statements to the police or copies of statements from severalwitnesses who arrived on the scene shortly after the incident. The investigator from counsel'soffice left few notes in the file, and those notes did not reveal that much of an investigation hadbeen conducted. Defendant avers that he provided information to that investigator, but thoseleads were apparently not pursued. Defendant also avers that counsel never discussed the facts ofthe case with him. He alleges that counsel provided advice based upon an incomplete picture ofthe situation, due mainly to counsel's failure to investigate or even talk with him about hisversion of what happened, but that defendant assumed counsel had conducted an investigationand was knowledgeable about the facts of his case when advising him. Based upon theallegations in defendant's motion, counsel's advice—mainly that defendant not testifybefore the grand jury and that he plead guilty—may have amounted to less thanmeaningful representation because it is unclear whether counsel was prepared to provide suchadvice.
Counsel stated during the plea proceeding that defendant wished to plead guilty to theindictment and "wants [counsel] to devote [his] professional energy to the preparation of asentencing memorandum for the Court's consideration, and he wants [counsel] to devote [his]offices' resources to investigating all factors involving him" and his life circumstances. Initially,defendant avers that counsel made that statement without consulting him, and they neverdiscussed a sentencing memorandum. According to the file kept by counsel and defendant'saffidavit, in the seven months between the plea and sentencing, counsel only met with defendantat the District Attorney's office regarding cooperation in the Pine case. There is no indication thatcounsel or his investigator ever met with defendant to discuss sentencing or the informationnecessary to draft a sentencing memorandum. In fact, no sentencing memorandum was everprepared. Counsel did send correspondence to defendant requesting that he obtain letters fromfamily members and individuals from the community attesting to his character. Those letterswere submitted to County Court less than two weeks prior to sentencing, without an explanationfrom counsel as to the content or authors of the letters. Counsel did not mention the letters atsentencing, other than responding to County Court's question about whether they should beattached to the presentence investigation report. The People blame counsel's conduct ondefendant's slow response in supplying the letters, but there is no information in the record tosupport that implication, other than counsel's repeated requests for the letters. It is unclear ifcounsel was unable to supply a sentencing memorandum due to defendant's inaction, everunsuccessfully attempted to meet with defendant, decided that a memorandum was unnecessaryor simply did not fulfill his promise to the court and defendant that he would submit amemorandum.
Although many of the arguments or alleged failures of counsel raised in the motion are notsufficient to require a hearing and can be dismissed outright, the issues set forth above wereadequately raised. These fact-based issues cannot be determined on the motion papers and shouldbe addressed at a hearing. Hence, we remit for a hearing where proof can be presented on theseissues (see People v Kearney, 78AD3d 1329, 1331 [2010]).
Spain, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.Ordered that the order is reversed, on the law, and matter remitted to the County Court of GreeneCounty for further proceedings not inconsistent with this Court's decision.
Footnote 1: Pine was separately convicted ofmanslaughter in the first degree and assault in the first degree. His conviction is the subject of aseparate appeal before this Court.
Footnote 2: Defendant's trial counsel did nottender an affidavit in response to defendant's CPL 440.10 motion.