| People v Devino |
| 2013 NY Slip Op 06739 [110 AD3d 1146] |
| October 17, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vNicholas R. Devino, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Andrew J. Proler of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered December 20, 2012, convicting defendant upon his plea ofguilty of the crime of criminal possession of a controlled substance in the third degree.
A Washington County grand jury handed up a four-count sealed indictment inOctober 2011 charging defendant with criminal sale and possession of controlledsubstances occurring in September and November 2010. An arrest warrant was issuedand provided to the State Police, who for well over six months were reportedly unable tolocate defendant, who had relocated, until he was arrested during a traffic stop inChautauqua County, where he had been residing. He was arraigned on the indictment onJune 14, 2012. Defendant retained new counsel, who made various omnibusmotions.[FN1]Defendant again retained new counsel and ultimately entered a guilty plea to criminalpossession of a controlled substance in the third degree. He waived his right to appealduring the plea colloquy, orally and in a written waiver signed in open court. Defendant[*2]later moved to withdraw his plea, arguing that hisstatutory speedy trial rights had been violated by the postindictment delay (seeCPL 30.30 [1] [a]). Defendant also contended that prior trial counsel had beenineffective in failing to make a pretrial motion to dismiss the indictment on this ground,rendering his plea involuntary and invalid. County Court denied defendant's motion andimposed the agreed-upon sentence of three years in prison with two years of postreleasesupervision. Defendant now appeals.
"By pleading guilty [and voluntarily waiving his appeal rights], defendant isprecluded from [directly] raising his claims that he was denied his CPL 30.30 statutoryright to a speedy trial" (People vIrvis, 90 AD3d 1302, 1303 [2011], lv denied 19 NY3d 962 [2012];see People v O'Brien, 56 NY2d 1009, 1010 [1982]; People v Slingerland, 101AD3d 1265, 1267 [2012], lv denied 20 NY3d 1104 [2013]; People v Cain, 24 AD3d889, 890 [2005], lv denied 7 NY3d 753 [2006]) and, further, this statutoryclaim was not preserved by a pretrial motion to dismiss the indictment on this ground(see CPL 210.20 [2]; People v Garcia, 33 AD3d 1050, 1051 [2006], lvdenied 9 NY3d 844 [2007]). However, defendant also argues—as hespecifically alleged in his motion to withdraw his plea—that he would not haveentered a guilty plea had counsel advised him that he had a meritorious speedy trialclaim, which he argues he possesses, and that counsel's failure to move to dismiss theindictment on this basis constituted ineffective assistance.
While a claim of ineffective assistance of counsel is generally foreclosed by a validappeal waiver, such as defendant executed here, such a claim survives that waiver to theextent that a defendant alleges that counsel's ineffectiveness impacted upon thevoluntariness of his or her guilty plea (see People v Trombley, 91 AD3d 1197, 1201 [2012], lvdenied 21 NY3d 914 [2013]; People v Garland, 69 AD3d 1122, 1123 [2010], lvdenied 14 NY3d 887 [2010]; People v Williams, 6 AD3d 746, 748 [2004], lvdenied 3 NY3d 650 [2004]; see also People v Marshall, 66 AD3d 1115, 1116 [2009];contrast People v Lane, 1AD3d 801, 802-803 [2003], lv denied 2 NY3d 742 [2004] [the defendantentered guilty plea/appeal waiver while omnibus motion raising statutory speedy trialclaim was pending, thus precluding that claim as well as the issue of counsel'sineffectiveness for failing to pursue it, as the claim did not impact the voluntariness ofthe plea]). Here, defendant's ineffectiveness of counsel claim was preserved by hismotion to withdraw his plea and adequately alleges that it impacted the voluntariness ofhis plea and appeal waiver, so as to survive both (see People v Johnson, 288AD2d 501, 502 [2001]; cf.People v Obert, 1 AD3d 631, 632 [2003], lv denied 2 NY3d 764[2004]). Thus, we address defendant's speedy trial claim in the context of ascertainingwhether he was deprived of meaningful representation, mindful that "[a] single error offailing to raise a meritorious speedy trial claim [may be] sufficiently egregious to amountto ineffective assistance of counsel" (People v Garcia, 33 AD3d at 1052; seePeople v Obert, 1 AD3d at 632; People v Johnson, 288 AD2d at 502).
The People concede that they were not ready for trial within six months after thecommencement of this felony criminal action on October 20, 2011, the date on which theindictment was filed (see CPL 1.20 [16]); indeed, they did not announce theirreadiness for trial until June 14, 2012,[FN2]when defendant was arraigned on the indictment, almost eight months after [*3]commencement (see CPL 30.30 [1] [a]; People v Farkas, 16 NY3d190, 193 [2011]). Thus, had counsel made a pretrial motion to dismiss theindictment on this ground, defendant would have been found to have carried his initialburden of demonstrating that the People declared their readiness for trial after thestatutory six-month period, thereby shifting the burden to the People to demonstrate thatsufficient periods of the delay were excludable (see People v Cortes, 80 NY2d201, 207 n 3 [1992]; People vRobinson, 67 AD3d 1042, 1044 [2009], lv denied 13 NY3d 910 [2009];People v St. Louis, 41AD3d 897, 898 [2007]). In response, in opposing defendant's motion to withdrawhis guilty plea, the People argued that they were ready for trial on a timely basis on theground that the postindictment delay here would be excluded by statute in calculating theperiod in which they were required to be ready for trial, as it was attributable todefendant's "absence or unavailability,"[FN3] given that his "location [was] unknown" during that period and "[could] [ ]not bedetermined by due diligence" (CPL 30.30 [4] [c] [i]; see People v Luperon, 85NY2d 71, 77-78 [1995]; People v Brossoit, 256 AD2d 919, 919-920 [1998]).
The determination of "whether the People have exercised diligence in locating anindividual is a mixed question of law and fact" (People v Luperon, 85 NY2d at78) and, "although minimal efforts are not sufficient to satisfy due diligence" (Peoplev Grey, 259 AD2d 246, 248 [1999], lv denied 94 NY2d 880 [2000]), "thepolice are not obliged to search for a defendant indefinitely as long as they exhaust allreasonable investigative leads as to his [or her] whereabouts" (People vDelaronde, 201 AD2d 846, 848 [1994] [emphasis added]). Defendant averred thatduring the relevant time period, he had—in early 2011—moved and leasedan apartment and resided in the Village of Silver Creek, Chautauqua County, an addresshe registered with the County Clerk's office, the Department of Motor Vehicles, state andfederal taxing authorities, the State Child Support Processing Center, the United StatesPostal Service, the local utility company, and the community college he attended, withdocumentation provided. In response to defendant's motion to withdraw his plea, thePeople submitted only an affidavit of an Assistant District Attorney, acknowledging thatthe State Police received the arrest warrant for defendant the day he was indicted andindicating that the State Police "commenced [unspecified] efforts" to locate defendantand were aware he had moved away; the People did not detail any specific effortsundertaken to locate defendant or submit any documentation. The People merely stated,in conclusory fashion, that while defendant's relocation to another area of the state"remained within the jurisdiction of the New York State Police," it was "outside theassignment zone of the [assigned State Police] investigating unit and, therefore, searchesdepended upon the assistance of outside officers" and that unspecified "[e]fforts wereunsuccessfully made in locating defendant at governmental agencies including supportcollection." However, police were obligated to diligently utilize "available lawenforcement resources" and cannot exclude the [*4]delaytime by relying on implicit "resource-allocation choices" (People v Luperon, 85NY2d at 80-81). The People's fleeting description of the efforts made to locate defendantfell far short of "all reasonable efforts to enforce judicially issued warrants" (id.at 80) required to satisfy the "due diligence" standard (CPL 30.30 [4] [c] [i]). As such,the People failed to meet their burden of establishing the statutory exclusion for thispostindictment prereadiness delay (see People v Robinson, 67 AD3d at 1044).Accordingly, all of this unready time would be chargeable to the People (see People vLuperon, 85 NY2d at 78-81; People v Devore, 65 AD3d 695, 697 [2009]).
Having established that defense counsel failed to make a meritorious statutory speedytrial claim in a motion to dismiss the indictment, we agree with defendant that he wasdenied meaningful representation and that his motion to withdraw his guilty plea shouldhave been granted on this ground. Since further prosecution on this indictment is notpossible due to the impermissible postindictment delay, the indictment must bedismissed.
Stein, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law and the facts, motion to withdraw the plea granted, and indictmentdismissed.
Footnote 1: Contrary to the People'sclaim on appeal, defendant's omnibus motion raised only a due process delay inprosecution claim under People v Singer (44 NY2d 241 [1978]), which CountyCourt denied. The defense did not, at that time, effectively raise a statutory speedy trialclaim under CPL 30.30.
Footnote 2: While the recordcontains a "Demand" document from the People dated October 20, 2011 (the date theindictment was filed) stating their readiness for trial, and under certain circumstances "aprearraignment statement of readiness can be valid" (People v Carter, 91 NY2d795, 798 [1998]), the People do not argue that this constituted a valid statement ofreadiness. Further, the document does not establish that it was actually sent to defensecounsel at that time (counsel is not named and it is not clear that defendant had counsel atthat time, when he was unaware of the indictment), or sent to and filed by the court clerkat that time, as it bears a court clerk date stamp of June 14, 2012, the arraignment date(see People v Kendzia, 64 NY2d 331, 337 [1985]).
Footnote 3: The People do notcontend that defendant was attempting to avoid apprehension during this period.