People v Forest

2016 NY Slip Op 05598 [141 AD3d 967]

July 21, 2016

Appellate Division, Third Department

As corrected through Wednesday, August 31, 2016

[*1]

The People of the State of New York, Respondent, vAllen Forest, Appellant.

Pamela B. Bleiwas, Ithaca, for appellant.

Gwen Wilkinson, District Attorney, Ithaca (Eliza Filipowski of counsel), forrespondent.

Clark, J. Appeals (1) from a judgment of the County Court of Tompkins County(Cassidy, J.), rendered October 29, 2014, convicting defendant upon his plea of guilty ofthe crime of forgery in the second degree, and (2) by permission, from an order of saidcourt, entered May 12, 2015, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment of conviction, without a hearing.

In satisfaction of a five-count indictment stemming from defendant's use of a stolencredit card to make unauthorized purchases at two convenience stores, defendant pleadedguilty to the crime of forgery in the second degree, admitting that he signed thecardholder's name without permission. The plea agreement provided that defendantwould successfully complete drug treatment and then enter the Judicial DiversionProgram (hereinafter JDP) (see CPL 216.05) and that, upon his successfulcompletion of the JDP, he could withdraw his guilty plea and enter a plea to amisdemeanor. The agreement contemplated that if defendant failed to abide by theconditions of the JDP, he could be sentenced, as a second felony offender, to a prisonterm up to 31/2 to 7 years. Pursuant to the agreement, defendant signed aplea memorandum outlining those plea terms, admitted his predicate felony and agreed towaive his right to appeal. He successfully completed substance abuse treatment, wasaccepted into the JDP and signed a JDP contract. In September 2014, defendant admittedthat he had absconded from the drug court program and violated the JDP contractconditions by failing to report to drug court and by using drugs. County Court [*2]terminated him from the JDP and imposed a prisonsentence of 3 to 6 years. Defendant's subsequent motion pursuant to CPL 440.10 tovacate the judgment was denied. Defendant now appeals from the judgment and, withpermission, from the order denying his motion to vacate.

Defendant's contention that his guilty plea was not knowing and voluntary, whichsurvives the unchallenged appeal waiver (see People v Moulton, 134 AD3d 1251, 1252 [2015]), wasnot preserved for our review by an appropriate postallocution motion pursuant to CPL220.60 (3), despite ample opportunity to do so within the many months between hisguilty plea and sentencing (seePeople v Labaff, 127 AD3d 1471, 1471 [2015], lv denied 26 NY3d 931[2015]; People v Disotell,123 AD3d 1230, 1231 [2014], lv denied 25 NY3d 1162 [2015]; see also People v Conceicao,26 NY3d 375, 382 [2015]; People v Tyrell, 22 NY3d 359, 363-364 [2013]; People v Peque, 22 NY3d168, 182 [2013]). A review of the plea allocution discloses that defendant did notsay anything that raised significant doubt as to his guilt or called into question thevoluntariness of his guilty plea so as to bring this case within the narrow exception to thepreservation requirement (see People v Lopez, 71 NY2d 662, 665-666 [1988];People v Disotell, 123 AD3d at 1231; see also People v Williams, 27 NY3d 212, 220[2016]).

Next, defendant's motion to vacate the judgment was premised upon the claim that,as relevant here, his guilty plea was not knowing and voluntary as a result of ineffectiveassistance of counsel, in that counsel failed to disclose to him (or the prosecutor) that awitness had signed an exculpatory affidavit prior to his guilty plea. Specifically, thewitness asserted that she had reviewed a photo supplied by the People, taken from theconvenience store surveillance video, and that the woman depicted therein was her butthat the man next to her in the photo was not defendant, who she knew, and that she didnot witness him use a stolen credit card on that day. Initially, while defendant claimed inhis affidavit in support of the motion that counsel did not disclose the affidavit to him, hedid not allege that he was unaware of it, and his letter to counsel submitted in support ofthe motion suggests that he was aware of it. Even assuming that defendant was unawareof the affidavit, a letter to defendant from defense counsel explained that the purpose ofthe affidavit was to impeach the witness if she were called by the People to testify; as thecharges were resolved with a plea, there was no need to admit the affidavit intoevidence.^[FN*]Notably, two police officers identified defendant as the person in the surveillance videoand, when confronted with pictures taken from that video, defendant admitted that it washim depicted in that video and that he had made purchases at the convenience store thatday, and he later disclosed that he had obtained the credit card from "a girl." In view ofthis strong evidence of guilt, and given that the record establishes that defendant receiveda favorable plea agreement that would have allowed him to avoid a felony conviction andprison had he complied with the drug court conditions, we are unpersuaded that hisguilty plea was not knowing or voluntary due to any ineffective assistance of counsel orthat he would not have pleaded guilty had he known about the affidavit (see People v Soprano, 135AD3d 1243, 1243 [2016], lv denied 27 NY3d 1007 [2016]; People v Gonzalez, 130 AD3d1089, 1090 [2015]). Accordingly, County Court properly denied defendant's motionto vacate premised upon CPL 440.10 (1) (h).

Lahtinen, J.P., Rose, Lynch and Aarons, JJ., concur. Ordered that the judgment andorder are affirmed.

Footnote *:The evidence establishedthat defense counsel had informed the prosecutor about this affidavit. Given thatdefendant did not establish that his plea was procured by misrepresentation or fraud "onthe part of the court or a prosecutor" (CPL 440.10 [1] [b]), this aspect of his motion tovacate was properly denied.