| People v Decker |
| 2016 NY Slip Op 03554 [139 AD3d 1113] |
| May 5, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRobert D. Decker, Appellant. |
Matthew Hug, Troy, for appellant.
Eric T. Schneiderman, Attorney General, New York City (Matthew B. Keller ofcounsel), for respondent.
Peters, P.J. Appeals (1) from a judgment of the County Court of MontgomeryCounty (Catena, J.), rendered July 24, 2014, convicting defendant upon his plea of guiltyof the crime of criminal possession of a forged instrument in the second degree, (2) froma judgment of the County Court of Saratoga County (Scarano, J.), rendered July 25,2014, convicting defendant upon his plea of guilty of the crimes of grand larceny in thethird degree, scheme to defraud in the first degree, offering a false instrument in the firstdegree and petit larceny, and (3) by permission, from an order of the County Court ofMontgomery County (Catena, J.), entered November 6, 2014, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction, without ahearing.
Following an investigation by the Attorney General's office, defendant—ahome improvement contractor—was accused of engaging in a multi-countyscheme in which he bilked dozens of clients out of substantial sums of money. Inaccordance with a plea offer proposed by the People, defendant pleaded guilty to aMontgomery County indictment charging him with the crime of criminal possession of aforged instrument in the second degree and waived his right to appeal in exchange for apromised prison sentence of 1 to 3 years and restitution not to exceed $500. Thereafter,pursuant to a written plea agreement, defendant waived indictment and pleaded guilty toa Saratoga County superior court information (hereinafter SCI) charging him with thecrimes of grand larceny in the third degree, scheme to defraud in the first degree, offeringa false instrument in the first degree and petit larceny in full satisfaction of all charged[*2]and uncharged crimes relating to the operation of hishome improvement contracting business during the period from April 2011 to December2013. The People further agreed that, in consideration of the Saratoga County plea,defendant's son would be permitted to plead guilty to a misdemeanor in satisfaction of athen-pending felony charge and that additional charges would not be pursued against theson in connection with his involvement in defendant's business. Defendant waived hisright to appeal, agreed to pay restitution in an amount not exceeding $375,000 and waspromised an aggregate prison term of 2 to 6 years to run consecutively to the sentenceimposed in Montgomery County.
After the entry of the pleas in both counties, defendant, represented by newlyassigned counsel, separately moved in Montgomery County Court and Saratoga CountyCourt to withdraw his respective guilty pleas on the basis that, among other things, hewas denied the effective assistance of counsel and his pleas were coerced by both thethreat of his son's prosecution and imprisonment as well as the People's promise ofleniency if he were to capitulate to the Saratoga County plea agreement. Defendant'smotions were denied, he was sentenced by each court in accordance with the terms of theapplicable plea agreement and a hearing was scheduled by Saratoga County Court todetermine the amount of restitution. Thereafter, pursuant to CPL 440.10, defendantsought to vacate both his Montgomery County and Saratoga County judgments ofconviction on the ground that his guilty pleas were coerced. Defendant also moved inSaratoga County Court to renew his motion to withdraw his guilty plea or, alternatively,to renew his motion to vacate the judgment of conviction, alleging that the SCI wasjurisdictionally defective. Montgomery County Court denied defendant's CPL 440.10motion without a hearing. Saratoga County Court denied defendant's motion to renewand, upon converting his CPL 440.10 motion into a motion to renew his motion towithdraw the guilty plea, denied such motion. Following a hearing, Saratoga CountyCourt ordered defendant to pay restitution in the amount of $167,434.19. Defendantappeals from both judgments of conviction and, by permission, the denial of his CPL440.10 motion without a hearing.
While defendant's claim that the SCI was jurisdictionally defective survives both hisguilty plea and valid appeal waiver (see People v Pierce, 14 NY3d 564, 570 n 2 [2010]; People v Rapp, 133 AD3d979, 980 [2015]; People vJackson, 128 AD3d 1279, 1279 [2015], lv denied 26 NY3d 930 [2015]),it is lacking in merit. Contrary to defendant's contention, the scheme to defraud offensecharged in the SCI is plainly the same offense as that charged in the felony complaint,and there is no factual discrepancy between the two (see People v Milton, 21 NY3d 133, 136-137 [2013]; compare People v Siminions,112 AD3d 974, 975 [2013], lv denied 24 NY3d 1088 [2014]). Accordingly,such count of the SCI charged an offense for which "defendant was held for action of agrand jury" (CPL 195.20), thus complying with the pertinent statutory requirement forwaiving indictment and serving as a proper jurisdictional predicate for defendant's guiltyplea (see People v Milton, 21 NY3d at 137; People v Waid, 26 AD3d 734, 735 [2006], lvdenied 6 NY3d 839 [2006]; People v Verrone, 266 AD2d 16, 17 [1999];see generally People v Pierce, 14 NY3d at 571; People v Menchetti, 76NY2d 473, 477 [1990]).[FN*] Further, by [*3]incorporating the elements of the crime by specificreference to the applicable statutory provision, the SCI "effectively charge[d]. . . defendant with the commission of a particular crime" and afforded him"fair notice of the charges made against him" (People v Ray, 71 NY2d 849, 850[1988] [internal quotation marks and citations omitted]; see People v Kamburelis, 100AD3d 1189, 1189-1190 [2012]; People v McDuffie, 89 AD3d 1154, 1155 [2011], lvdenied 19 NY3d 964 [2012]). To the extent that defendant's argument is addressed tothe factual sufficiency of the SCI, such claim is precluded by his guilty plea (see People v Martinez, 106AD3d 1379, 1380 [2013], lv denied 22 NY3d 957 [2013]; People v Morales, 66 AD3d1083, 1084 [2009]; Peoplev Quinones, 51 AD3d 1226, 1227 [2008], lv denied 10 NY3d 938[2008]).
Nor are we persuaded by defendant's challenge to the summary denial of his motionsto withdraw his respective guilty pleas. "Whether to permit a defendant to withdraw hisor her plea of guilty is left to the sound discretion of County Court, and withdrawal willgenerally not be permitted absent some evidence of innocence, fraud or mistake in itsinducement" (People vBurns, 133 AD3d 1045, 1046 [2015] [internal quotation marks and citationsomitted]; see People vCurry, 123 AD3d 1381, 1383 [2014], lv denied 25 NY3d 950 [2015]; People v Young, 112 AD3d1068, 1069 [2013], lv denied 22 NY3d 1204 [2014]). An evidentiary hearingwill be required "only where the record presents a genuine question of fact as to theplea's voluntariness" (People vPerkins, 125 AD3d 1045, 1046 [2015]; see People v Brown, 14 NY3d 113, 116 [2010]; People v Trimm, 129 AD3d1215, 1215-1216 [2015]; People v Cole, 118 AD3d 1098, 1100 [2014]).
Here, the record demonstrates that the terms and conditions of the MontgomeryCounty plea were extensively explained to defendant and the matter was twice adjournedto provide defendant additional time to consider the offer and discuss the matter withcounsel. During the thorough and detailed plea colloquy that ensued, defendantacknowledged that he understood the consequences of pleading guilty, stated that he wassatisfied with counsel's services and readily admitted to conduct constituting the relevantcrime. When defendant stated that he was led to believe that the People would not pursuecharges against his son if he accepted the plea offer and that his son's arrest two daysearlier amounted to "a lot of pressure" with regard to his decision to plead guilty,Montgomery County Court immediately interjected and conducted an appropriateinquiry. Defendant then twice confirmed that no promises were made in connection withthe plea other than those set forth on the record, that he had not been threatened, coercedor otherwise influenced into pleading guilty and that he was pleading guilty freely,voluntarily and because he was, in fact, guilty. Under such circumstances, MontgomeryCounty Court was not required to hold a hearing to further inquire into the existence ofany purported off-the-record promise with respect to defendant's son (see Matter ofBenjamin S., 55 NY2d 116, 120-121 [1982]; People v Walker, 26 AD3d 797, 798 [2006], lvdenied 6 NY3d 854 [2006]; People v Salvagni, 199 AD2d 680, 680 [1993];People v Sanchez, 184 AD2d 537, 538 [1992], lv denied 80 NY2d 909[1992]).
While defendant's Saratoga County guilty plea was entered in return for a promise ofleniency with regard to pending and contemplated charges against defendant's son, it issettled that " 'a plea agreement is not inherently coercive or invalid simplybecause it affords a benefit to a loved one, as long as the plea itself is knowingly,voluntarily and intelligently made' " (People v [*4]Phillips, 71 AD3d1181, 1183-1184 [2010], lv denied 15 NY3d 755 [2010], quoting Peoplev Etkin, 284 AD2d 579, 580 [2001], lv denied 96 NY2d 862 [2001]; seePeople v Fiumefreddo, 82 NY2d 536, 545 [1993]). Saratoga County Court engagedin a detailed plea colloquy wherein it informed defendant of the ramifications of pleadingguilty, including the rights he was relinquishing, and ascertained that he was entering theplea agreement freely and voluntarily. Defendant's claim that his plea was coerced isbelied by both his statements during the plea allocution and the counseled seven-pagewritten plea agreement he executed, wherein he confirmed that no threats or promiseshad been made to induce him into pleading guilty and attested that his guilty plea wasbeing entered "freely, voluntarily, knowingly, and without coercion of any kind." Basedon our review of the record before us, we are convinced that defendant's guilty pleaswere knowingly, intelligently and voluntarily made and find no abuse of discretion in thesummary denial of his motions to withdraw such pleas (see People v McNew, 117AD3d 1491, 1492 [2014], lv denied 24 NY3d 1003 [2014]; People vYoung, 112 AD3d at 1069; People v Goodell, 104 AD3d 1026, 1026 [2013], lvdenied 22 NY3d 1138 [2014]; People v Wolf, 88 AD3d 1266, 1267 [2011], lvdenied 18 NY3d 863 [2011]).
Defendant's claim that Montgomery County Court erred in summarily denying hisCPL 440.10 motion—which was premised on the same allegations of coercionlodged in his motions to vacate his guilty pleas—is similarly unavailing. Nohearing was required inasmuch as defendant's arguments could properly be resolvedbased upon the contents of the record, and the proffered affidavits failed to demonstratethat "the nonrecord facts sought to be established are material and would entitle him torelief" (People v Satterfield, 66 NY2d 796, 799 [1985]; see People v Rebelo, 137AD3d 1315, 1317 [2016]; People v Griffin, 89 AD3d 1235, 1237-1238 [2011]).
Finally, defendant contends that the amount of restitution is excessive andunsupported. Inasmuch as the Saratoga County plea agreement contemplated restitutionbut did not specify the amount to be awarded, this contention is not precluded bydefendant's appeal waiver (seePeople v Robinson, 133 AD3d 1043, 1044 [2015]; People v Gardner, 129 AD3d1386, 1388 [2015]). It is, however, without merit. "In seeking restitution, the Peoplebore the burden of demonstrating the amount of the victim's out-of-pocket losses by apreponderance of the evidence. The amount gained by defendant or taken from thevictim must be offset against the value of any benefit that may have been conferred uponthe victim, and 'the People must show both components of the restitution equation, theamount taken minus the benefit conferred' " (People v Johnson, 91 AD3d 1121, 1123 [2012] [citationsomitted], lv denied 18 NY3d 959 [2012], quoting People v Tzitzikalakis, 8 NY3d217, 221-222 [2007]; accord People v Russo, 68 AD3d 1437, 1438 [2009];see Penal Law § 60.27 [2]).
Focusing on 12 of the victims to whom restitution was awarded, defendant claimsthat the People failed to prove the value (or lack thereof) of certain completed or partiallycompleted work that he performed under the respective contracts. Mindful that "[a]nyrelevant evidence, not legally privileged, [is admissible] regardless of its admissibilityunder the exclusionary rules of evidence" (CPL 400.30 [4]; see People vConsalvo, 89 NY2d 140, 145 [1996]; People v Tuper, 125 AD3d 1062, 1062 [2015], lvdenied 25 NY3d 1078 [2015]), we cannot agree. In our view, the evidence presentedat the hearing—which included the sworn affidavits of each of the 12 victims atissue and other supporting documentation with regard to the value (if any) conferred bydefendant's work—was sufficient to establish a prima facie case of the victims'out-of-pocket losses (see Peoplev Stevens, 84 AD3d 1424, 1427 [2011], lv denied 17 NY3d 822 [2011];People v Ford, 77 AD3d1176, 1176-1177 [2010], lv denied 17 NY3d 816 [2011]; People vRusso, 68 AD3d at 1438). Accordingly, "the burden of going forward [fell] to. . . defendant to offer evidence contradicting the People's calculation"(People v Tzitzikalakis, 8 [*5]NY3d at 221 n 2).As defendant failed to do so, the restitution awarded to these 12 victims will not bedisturbed.
Defendant's remaining ascriptions of error, to the extent not specifically discussedherein, have been reviewed and found to be unavailing.
Lahtinen, Rose, Lynch and Aarons, JJ., concur. Ordered that the judgments and orderare affirmed.
Footnote *:To the extent thatdefendant's assertion that Saratoga County Court lacked geographic jurisdiction over thescheme to defraud count can be viewed as a challenge to the validity of the waiver ofindictment or SCI, which would survive his guilty plea and appeal waiver (see Peoplev Pierce, 14 NY3d at 570 n 2; People v Boston, 75 NY2d 585, 589 n [1990]),such contention must fail. The record establishes that one or more of the elements of thescheme to defraud charge occurred in Saratoga County, rendering it a proper venue forprosecution of such crime (see CPL 20.40 [1] [a]; People v White, 104 AD3d1056, 1057 [2013], lv denied 21 NY3d 1021 [2013]; People v Banks, 38 AD3d938, 939 [2007], lv denied 9 NY3d 840 [2007]).