| People v Trombley |
| 2012 NY Slip Op 00428 [91 AD3d 1197] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RickTrombley, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Spain, J.P. Appeals (1) from a judgment of the County Court of Franklin County (Main Jr.,J.), rendered May 17, 2010, convicting defendant upon his plea of guilty of the crime of criminalcontempt in the second degree, and (2) by permission, from an order of said court, enteredJanuary 3, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment of conviction, without a hearing.
After a late night argument with Korrin Schofield in May 2009 outside a bar in the Town ofTupper Lake, Franklin County, defendant was arrested and charged with criminal contempt in thefirst degree. That felony charge was based upon the allegation that defendant had violated anorder of protection, dated August 21, 2008 (hereinafter the 2008 order of protection) issued bySupreme Court, Essex County (Meyer, J.) in a Family Ct Act article 10 neglect proceedinginvolving defendant's sons in which defendant was a respondent; the 2008 order of protection,among other provisions, directed defendant to refrain from criminal offenses against his sons andSchofield, his then girlfriend and the mother of one of his sons, and directed defendant andSchofield not to "use, consume or possess illegal drugs or alcoholic beverages."
When the matter was presented to the Franklin County grand jury, two felony counts of [*2]criminal contempt in the first degree were charged based upondefendant's alleged assault of Schofield, and one count of criminal contempt in the seconddegree, a misdemeanor, was charged based upon defendant's use and consumption of alcohol thatnight. Defendant waived immunity and testified on his own behalf, admitting that he hadconsumed alcohol that evening. Other witnesses also testified that defendant was intoxicated thatevening and was seen consuming alcohol. While the grand jury dismissed the first degree felonycontempt charges related to Schofield (see CPL 190.75 [1]), it handed up a one-countindictment charging defendant with criminal contempt in the second degree (see PenalLaw § 215.50 [3]) for violating the 2008 order of protection[FN1]by possessing and consuming alcohol.
Defendant, represented by the conflict Public Defender, was released under supervision ofprobation, which the People later sought to have revoked based upon other charges pendingagainst defendant, including his arrest in the Village of Tupper Lake, Franklin County foraggravated unlicensed operation of a motor vehicle in the second degree (hereinafter AUO)(see Vehicle and Traffic Law § 511 [2]). On February 22, 2010, defendantappeared with assigned counsel and, pursuant to a negotiated agreement, entered a guilty plea tothe indicted contempt charge, which also satisfied the pending AUO charge. While County Courtmade no sentencing promises, defendant was advised of the available options. Defendant alsowaived his right to appeal, except with regard to constitutional issues and the sentence.
On the date scheduled for sentencing, assigned counsel informed County Court thatdefendant wished to retain a particular attorney, defendant briefly consulted with that attorney,who was in court, and sentencing was adjourned for that purpose. Defendant's release undersupervision of probation was revoked due to his violation of the conditions attached to hisrelease, and he was remanded to jail pending sentencing. At the rescheduled sentencing,defendant appeared again with his assigned counsel and indicated that, despite his efforts, he hadnot had any contact with the attorney who he had expressed an interest in retaining. The courtmade note of its receipt of a pro se letter from defendant, sent ex parte to the court, requesting towithdraw his plea, which the court had sent to all parties. Counsel did not join defendant'smotion, but placed on the record that she had advised defendant of his right to retain substitutecounsel, to represent himself and to pursue his pro se motion to withdraw his plea. When pressedby the court about his intentions, defendant indicated that he wanted to proceed to sentencing anddid not request a further adjournment. The court sentenced him to 365 days in jail and issued anorder of protection in favor of Schofield. Subsequently, County Court, in a lengthy decision,denied defendant's CPL 440.10 motion to vacate the judgment, without a hearing. Defendant nowappeals from the judgment of conviction and, with permission, from the order denying his CPLarticle 440.
Initially, defendant seeks—for the first time on this appeal—to challenge thereasonableness of the conditions imposed in the 2008 order of protection, which directed that herefrain from possessing or consuming alcoholic beverages (see Family Ct Act §1056 [1] [e]). The record does not reflect that defendant ever sought to vacate or modify the 2008order of [*3]protection imposing those conditions (seeCPL 530.12 [15]), issued by another court in a different county (see People v Nieves, 2 NY3d 310,317 [2004]), or that defendant ever appealed from that order (see Matter of Naricia Y., 61 AD3d 1048, 1049 [2009]; see alsoPeople v Nieves, 2 NY3d at 315). Indeed, the Family Ct Act article 10 record upon whichSupreme Court issued the 2008 order of protection is not provided on this appeal, which is onlyfrom the judgment entered in County Court upon defendant's guilty plea to criminal contempt inthe second degree for violating that order.
Moreover, defendant forfeited any challenge to the validity of the 2008 order of protection bypleading guilty and waiving his right to appeal (see People v Konieczny, 2 NY3d 569, 572-573 [2004]); he alsofailed to preserve this claim by abandoning his motion to withdraw his plea (see People v Charlotten, 44 AD3d1097, 1099 [2007]). Defendant's claim that the 2008 order of protection containedunreasonable conditions in violation of Family Ct Act § 1056, or ones which did notpromote the best interests of the children in that neglect proceeding, does not implicate thejurisdiction of the courts and, thus, did not survive his guilty plea, which "generally results in aforfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings"(People v Fernandez, 67 NY2d 686, 688 [1986]; see People v Konieczny, 2NY3d at 572-574). While "rights of a constitutional dimension that go to the very heart of theprocess" survive a guilty plea (People v Hansen, 95 NY2d 227, 230 [2000]), defendant'schallenges are not of constitutional dimension, despite his efforts to cast them in that light;rather, they are, at most, nonjurisdictional statutory violations (see People v Konieczny, 2NY3d at 574).
The 2008 order of protection appears, on its face, to be a "valid judicial mandate" and, assuch, "was entitled to the presumption of regularity for purposes of fulfilling the pleadingrequirements" (People v Konieczny, 2 NY3d at 577). While "the People would have hadthe burden of establishing that the [conditions in the] order of protection [were] valid" haddefendant gone to trial, "because defendant pleaded guilty without creating a record on the issue. . . this Court would have to conduct a collateral review of the prior proceedingbased on documents and transcripts outside the record in this case" (People v Konieczny,2 NY3d at 573). In view of the foregoing, we hold that defendant may not, on this appeal,collaterally challenge the validity of the underlying 2008 order of protection or the conditionscontained therein.
Next, the record on defendant's direct appeal does not support his claim that he was deniedthe effective assistance of counsel, or that his guilty plea and appeal waiver were the result ofsuch ineffectiveness. The record establishes that counsel negotiated a favorable plea deal thatresolved this charge as well as the unrelated AUO charge for which defendant could havereceived consecutive sentencing.[FN2]Defendant's challenges to counsel's motion practice and discovery efforts were forfeited by hisguilty plea, as a defendant who enters a plea and admits guilt "may not later seek review ofclaims relating to the deprivation of rights that took place before the plea was entered"(People v Hansen, 95 NY2d at 230). In any event, this claim lacks merit as counselentered into a stipulation in lieu of motions providing for open file discovery, and defendantentered a guilty plea prior to the scheduled pretrial suppression hearings. Moreover, whiledefendant's valid waiver of appeal precludes his claims of ineffective assistance of counselexcept to the extent they directly affected the voluntariness of his subsequent plea, his [*4]claims regarding counsel's pre-plea performance do not so implicatethe voluntariness of his plea so as to survive his appeal waiver (see People v Santos-Rivera, 86 AD3d790, 791 [2011], lv denied 17 NY3d 904 [2011]). In addition, "nothing in the recordat the time of the plea calls into question the voluntariness of his plea or indicates that it wasrendered so due to counsel's [inadequate] representation" (People v Herringshaw, 83 AD3d 1133, 1134 [2011]).
With regard to the alleged deficiencies in counsel's representation of defendant at the grandjury proceedings, they are precluded by defendant's guilty plea and appeal waiver (see People v Mercer, 81 AD3d1159, 1160 [2011]; People vBuckler, 80 AD3d 889, 890 [2011], lv denied 17 NY3d 804 [2011]), as they arenot jurisdictional or constitutional in nature (see People v Hansen, 95 NY2d at 231-232).Defendant elected to testify (see CPL 190.50 [5] [a]), voluntarily signed a waiver ofimmunity which he acknowledged, and waived his right against self-incrimination, all of whichwas explained to him (see CPL 190.52 [1]), and he was represented by counsel(see CPL 190.52 [1], [2]); after being sworn, defendant was obligated "to answer anylegal and proper interrogatory" (Penal Law § 215.51 [a]; see People v Ianniello, 36NY2d 137, 145 [1975], cert denied 423 US 831 [1975]). Defendant does not claim thathe was denied the right to consult with counsel, and the content of that advice is outside therecord on this direct appeal of his judgment of conviction. "By waiving the right to immunity, atestifying defendant before the [g]rand [j]ury necessarily gives up the Fifth Amendment privilegeagainst self-incrimination" (People v Smith, 87 NY2d 715, 719 [1996]).[FN3]
To the extent that defendant argues that County Court abused its discretion in summarilydenying his pro se request to withdraw his guilty plea, we disagree, as defendant himselfabandoned this motion while the court was inquiring into the status of his efforts to retainsubstitute counsel, and defendant indicated that he wanted to go forward with sentencing uponhis plea (see People v Carroway, 84AD3d 1501, 1501 [2011], lv denied 17 NY3d 805 [2011]). Further, the decision topermit a defendant to withdraw a guilty plea is a discretionary one, and hearings are granted onlyin rare circumstances (see People vHayes, 71 AD3d 1187, 1188 [2010], lv denied 15 NY3d 852 [2010]; Peoplev D'Adamo, 281 AD2d 751, 752 [2001]). Given that defendant had voluntarily entered avalid guilty plea and appeal waiver, that he did not negate his plea admissions in his pro se letter,which improperly sought to collaterally attack the 2008 order of protection, and that hisallegations regarding his strained relationship with assigned counsel did not concern thevoluntariness of his choice to enter a guilty plea or constitute [*5]ineffective assistance of counsel, even if the court were deemed tohave effectively denied his motion without a hearing, no error occurred (see CPL 220.60[3]; People v Seeber, 4 NY3d780, 780-781 [2005]; People v Alexander, 97 NY2d 482, 485 [2002]).
Likewise, County Court had no grounds to assign substitute counsel based upon defendant'sconclusory and unsupported allegations (see People v Murray, 25 AD3d 911, 912 [2006], lv denied6 NY3d 896 [2006]; People vLoadholt, 19 AD3d 235, 235 [2005]; People v Bolden, 289 AD2d 607, 609-610[2001], lv denied 98 NY2d 649 [2002]), and assigned counsel had no duty to participatein defendant's pro se motion to withdraw his plea, which had been voluntary, knowing andintelligent (see People v Ford, 44AD3d 1070, 1071 [2007]), or to join in defendant's request to be assigned new counsel(see People v Murray, 25 AD3d at 912). No ineffective assistance is established fromcounsel's failure to "make a motion or argument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287[2004]; see People v Caban, 5NY3d 143, 152 [2005]), an apt characterization of defendant's claims.
Next, County Court did not abuse its discretion at sentencing in issuing a stay away/nocontact order of protection in favor of Schofield (see CPL 530.13 [4] [a]). While thecourt mistakenly referred to her as a "victim," when she was a "witness" to his alcohol-relatedoffense, she was the proper subject of an order of protection (see People v Nieves, 2NY3d at 316-317).
Further, we find no error or abuse of discretion in County Court's denial of defendant's pro seCPL article 440 motion to vacate the judgment of conviction without a hearing, based upon thewritten submissions (see CPL 440.30 [1], [4] [a]). Defendant's motion argued that trialcounsel was ineffective for not collaterally attacking the conditions imposed in the 2008 order ofprotection, which he argued are invalid, in advising him to accept a guilty plea and in notsupporting his pro se motion to withdraw his plea. All of these grounds were raised, reviewedand rejected herein on defendant's direct appeal from the judgment of conviction, and his CPLarticle 440 motion was properly summarily denied (except on one issue) because the directappeal of the judgment was pending and "sufficient facts appear on the record" to permitadequate review thereof (CPL 440.10 [2] [b]).
Finally, with regard to defendant's ineffective assistance of counsel claim in his CPL article440 motion, to the extent such claim is not reviewable on his direct appeal, defendant reliedsolely on his own affidavit, which failed to establish that "the nonrecord facts sought to beestablished are material and would entitle him to relief" (People v Satterfield, 66 NY2d796, 799 [1985]; see People vGriffin, 89 AD3d 1235, 1237-1238 [2011]). Defendant's claim concerning what counseladvised him about his rights when testifying before the grand jury did not require a hearing, asdefendant did not claim in his affidavit that he did not understand the waiver of immunity or hisrights, which were explained to him in detail on the record and which he indicated he understood(see People v Smith, 87 NY2d at 719). Further, defendant did not contend on his CPLarticle 440 motion, and does not argue on appeal, that he was questioned at the grand juryregarding "unrelated pending charges" (id. at 720, 721), so as to provoke counsel'sinvocation of defendant's Fifth Amendment right to refuse to answer. "Viewed objectively, thetranscript and the submissions reveal the existence of a [defense] strategy that might well havebeen pursued by a reasonably competent attorney" (People v Satterfield, 66 NY2d at799). Thus, no hearing was required on defendant's motion, given the nature of defendant'sclaims, and the motion was properly denied (see CPL 440.10 [2], [3]; 440.30 [2]).
Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote 1: While the record also containsan order of protection dated February 6, 2009 signed by Supreme Court, Essex County in thesame Family Ct Act article 10 proceeding, that order was not (as defendant asserts on appeal) thebasis for the indictment at issue here.
Footnote 2: While, earlier, defendant hadbeen offered a plea deal with less jail time, that offer did not include the unrelated AUO offenseresolved by this plea.
Footnote 3: While a prospective defendantwho signs a waiver of immunity and testifies at the grand jury does not waive the privilegeagainst self-incrimination as to unrelated pending criminal matters, here defendantincriminated himself while making a statement about "matters relevant to the case before the[g]rand [j]ury" (People v Smith, 87 NY2d at 719), as was his right (see CPL190.50 [5] [b]). Defendant's incriminating statements were not elicited during prohibitedquestioning concerning unrelated pending charges. Thus, were we to address defendant's claimthat counsel was ineffective for failing to object or to openly direct defendant not to answerquestions regarding his consumption or possession of alcohol on the night of his encounter withSchofield outside a bar, we would reject it outright (see CPL 190.52 [2]).