| People v Clark |
| 2016 NY Slip Op 05831 [142 AD3d 723] |
| August 18, 2016 |
| Appellate Division, Third Department |
[*1](August 18, 2016)
| The People of the State of New York, Respondent, vBrian Clark, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered July 16, 2014, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the fifth degree.
In October 2013, defendant was charged in a four-count indictment with the crimesof criminal possession of a controlled substance in the fifth degree (two counts) andcriminal sale of a controlled substance in the fourth degree (two counts). He thereafterpleaded guilty, pursuant to a plea agreement, to criminal possession of a controlledsubstance in the fifth degree in full satisfaction of the indictment and executed a writtenwaiver of his right to appeal in open court. Consistent with the terms of the pleaagreement, County Court sentenced defendant to five [*2]years of probation, imposed 100 hours of communityservice and ordered him to pay restitution. Defendant now appeals.
Defendant maintains that he was deprived of meaningful representation concerninghis plea because defense counsel misinformed him that he could still appeal a claim ofjuror bias. This issue came to light at sentencing. When asked by County Court if hewished to be heard, defendant responded, "I guess the only thing I wanted to say is that Iwanted to make sure—I know you can't appeal this, but I wanted to appeal thethings that—[defense counsel] said I can go to the [a]ppellate [c]ourt, because themember of the grand jury was a friend of mine for six years, a neighbor." Defensecounsel directly responded that "[h]e certainly can appeal it" and added, "I've explained itto him probably 20 times"—leaving little question that "it" refers to the juror biasclaim. Defendant countered, "No, today was the first time you ever explained that to me."County Court left the issue unresolved, simply responding that "if you feel you have anappealable issue that the Appellate Division can hear you certainly have the right toappeal."
While defendant couches his claim in terms of an invalid appeal waiver, we find thatdefendant's claim actually presents a threshold question of forfeiture, i.e., whether aclaim of potential juror bias in the grand jury survives a plea. Notably, defendant madeno such specific claim in his preplea motion to dismiss the indictment, contending onlygenerally that the proceedings were impaired by irregularities (see CPL 210.35[5]; compare People vWashington, 82 AD3d 1675, 1676 [2011], lv denied 19 NY3d 1106[2012]). County Court denied the motion, finding no infirmities in the grand jury minutesthat would warrant a dismissal. Since we do not perceive the claim to be jurisdictional orto implicate "rights of a constitutional dimension that go to the very heart of the process"(People v Hansen, 95 NY2d 227, 230-231 [2000]), we conclude that a claim ofjuror bias would actually be forfeited upon a guilty plea (see People v Hansen, 95NY2d at 231).
Inasmuch as defendant's misunderstanding as to his ability to appeal the juror biasissue was brought to County Court's attention at sentencing, we find that defendant'schallenge to the voluntariness of his plea has been sufficiently preserved for our review(see generally CPL 470.05 [2]; compare People v Garay, 25 NY3d 62, 67 [2015], certdenied 577 US &mdash, 136 S Ct 501 [2015]; People v Green, 54 NY2d878, 880 [1981]), notwithstanding the absence of an appropriate postallocution motion.Once County Court learned that defendant had been given erroneous advice by counsel,the court should have conducted a further inquiry to ascertain whether defendant wishedto go forward with the plea (cf. People v Bendross, 153 AD2d 75, 76-77 [1989]).Absent such inquiry by County Court, and in light of the fact that the record otherwisepresents "a genuine issue of fact as to the knowing, intelligent and voluntary nature ofdefendant's guilty plea" (Peoplev Bass, 118 AD3d 1033, 1034 [2014] [internal quotation marks and citationomitted], lv denied 24 NY3d 959 [2014]; compare People v Santiago,121 AD3d [*3]528, 528 [2014], lv denied 24NY3d 1123 [2015]), this matter must be remitted to County Court to afford defendant anopportunity to either accept the plea that was offered or move to withdraw his plea (cf. People v Denegar, 130AD3d 1140, 1141-1142 [2015]). By so concluding, we are not resolving thequestion as to whether defendant was deprived of meaningfulrepresentation—only referring that question to County Court for resolution in thefirst instance.
Egan Jr., Rose and Aarons, JJ., concur.
McCarthy, J.P. (dissenting). Because the record does not support the conclusion thatdefendant preserved the issue or that he was provided ineffective assistance of counsel, Irespectfully dissent. The majority concludes that, based on statements that defendant andhis counsel made at a sentencing hearing, counsel conceded to having advised defendantthat he would be able to raise a grand jury issue on appeal, despite defendant havingpleaded guilty and having waived his right to appeal. The majority finds that CountyCourt ought to have interpreted the statements in the same manner that the majority nowdoes and concluded that counsel was describing erroneous legal advice—despiteno one arguing that it was erroneous legal advice or seeking any legal relief whatsoeverfrom the court—and that therefore defendant preserved the contention that his pleawas involuntary based upon ineffective assistance of counsel. Further, and rather thananswering the purely legal question of whether defendant's contentions even amounted toa prima facie ineffective assistance of counsel claim, the majority determines that it oughtto remit and "refer[ ]" the issue to County Court for further inquiry. Contrary to theseconclusions, defendant's contention is not preserved, and, even assuming that he receivederroneous legal advice, he failed to make out a prima facie claim that he was deprived ofmeaningful representation. Accordingly, the judgment should be affirmed.
Initially, "[w]hile defendant's waiver of his right to appeal does not bar hisineffective assistance of counsel claim insofar as it relates to the voluntariness of hisplea, his failure to move to withdraw his plea or vacate the judgment of convictionrenders such claim unpreserved for our review" (People v Dobrouch, 59 AD3d 781, 781 [2009] [citationsomitted], lv denied 12 NY3d 853 [2009]; see People v Lord, 128 AD3d 1277, 1278 [2015];People v Royce, 122 AD3d [*4]1008, 1009[2014]; People v Ildefonso,89 AD3d 1327, 1327 [2011]).[FN1] Moreover, defendant made nostatements during the plea colloquy that would bring this contention within the narrowexception to the preservation requirement (see People v Pickett, 128 AD3d 1275, 1276 [2015], lvdenied 26 NY3d 933 [2015]).
Even if I assumed, for the sake of argument, that the majority correctly interprets therecord in concluding that defense counsel indicated that she advised defendant that hecould raise his grand jury claim on appeal,[FN2] defendant would still have failed as amatter of law to establish [*5]any resulting prejudice.With regard to a guilty plea, in order to establish an ineffective assistance of counselclaim pursuant to the federal constitution, a defendant must prove, among other things,"that there is a reasonable probability that, but for counsel's errors, he [or she] would nothave pleaded guilty and would have insisted on going to trial" (Hill v Lockhart,474 US 52, 59 [1985]; accordPeople v McDonald, 1 NY3d 109, 114 [2003]). Here, defendant failed to makeeven a prima facie showing of prejudice given that he made no assertion that, but for hisbelief that he could seek appellate review of the grand jury issue, he would not havepleaded guilty.[FN3]Accordingly, defendant failed to make out a prima facie federal constitutional claim ofineffective assistance of counsel (see People v McDonald, 1 NY3d at 115; compare People v Williams, 72AD3d 1347, 1348 [2010]).
Finally, defendant also failed to make a prima facie claim that he was, despite theabsence of prejudice, deprived of meaningful representation pursuant to the NYConstitution. "So long as the evidence, the law, and the circumstances of a particularcase, viewed in totality and as of the time of the representation, reveal that the attorneyprovided meaningful representation, the constitutional requirement will have been met"(People v Baldi, 54 NY2d 137, 147 [1981] [citations omitted]; accord Peoplev Rivera, 71 NY2d 705, 708 [1988]). Even if defendant's grand jury contentioncould survive his guilty plea and his appeal waiver, it would be unpreserved for ourreview—a fact that the majority concedes—given his failure to raise thisspecific claim in his motion to dismiss the indictment (see People v Miller, 27 AD3d1017, 1018 [2006]; Peoplev Stabb, 9 AD3d 738, 739 [2004], lv denied 3 NY3d 712 [2004]).Further, defendant does not contend that defense counsel ought to have raised the issuein the motion to dismiss the indictment; this may be for good reason, as a review of thegrand jury minutes establishes that there is no factual basis for defendant's assertion thata friend and neighbor served on the grand jury. Thus, the single, nonprejudicial error thatthe majority finds warrants remittal was counsel's legal advice regarding the merits of anunpreserved issue that counsel may have already investigated and determined had nofactual basis.
Moreover, meaningful representation inquiries must consider the representation as a[*6]whole. After defendant was charged with two class Cfelonies and two class D felonies (see Penal Law §§ 220.06,220.34), his counsel secured a plea bargain to one class D felony, which automaticallyreduced defendant's maximum exposure from any single count from a prison term of5
Ordered that the order is modified, on the law, by vacating the sentence imposed;matter remitted to the County Court of Schenectady County for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1:According to themajority's logic, the fact that an alleged error occurs before a trial court "br[ings] toCounty Court's attention" the error, thereby preserving it. That logic is directly contraryto the legal requirement that a litigant such as defendant "expressly or impliedly s[eek] orrequest[ ] a particular ruling or instruction" in order to preserve an issue (CPL 470.05[2]). One cannot conclude that defendant, in making a statement about his desire toappeal that did not even reference his guilty plea, impliedly sought to withdraw or vacatehis guilty plea based on ineffective assistance of counsel. Further, it is unreasonable toexpect that County Court should have concluded that defendant was attempting to makeout an ineffective assistance of counsel claim based on the colloquy that occurred atsentencing, particularly in light of defendant's previous assurance, at the time of the plea,that he was satisfied with the services of counsel.
Footnote 2:At no point in thecolloquy did counsel state that she advised defendant that his grand jury issue could bereviewed by an appellate court; in the midst of a larger discussion, she stated that"[defendant] certainly can appeal it." It is ambiguous what "it" refers to in this context,since it could either mean the judgment—describing correct legaladvice—or defendant's particular grand jury issue—describing incorrectlegal advice. The majority's decision to resolve this ambiguity in favor of the conclusionthat counsel gave erroneous legal advice is difficult to reconcile with our obligation toemploy a presumption of competence on the part of an attorney in the context of anineffective assistance of counsel claim (see Strickland v Washington, 466 US668, 689 [1984]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Torres, 13 AD3d562, 563 [2004]; People v Vecchio, 228 AD2d 820, 821 [1996]).
Footnote 3:The burden of provingineffective assistance of counsel is on a defendant and not on a trial court. There is nobasis in law for the majority's conclusion that County Court, in the midst of conducting asentencing hearing, was required to conduct a "further inquiry to ascertain whetherdefendant wished to go forward with the plea."