| People v Howe |
| 2017 NY Slip Op 03563 [150 AD3d 1321] |
| May 4, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v TravisHowe, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.
Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
McCarthy, J.P. Appeals (1) from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered December 3, 2012, convicting defendant upon his plea of guilty of thecrime of robbery in the first degree, and (2) by permission, from an order of said court, enteredFebruary 5, 2016, which denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment of conviction, without a hearing.
Defendant was charged by indictment with robbery in the first degree and grand larceny inthe fourth degree stemming from his participation in a March 2011 armed robbery of a store withMichael Wells. Wells was convicted for this crime and thereafter implicated defendant andtestified at the grand jury that handed up the indictment against defendant. After the jury wassworn at defendant's trial, defendant pleaded guilty to robbery in the first degree pursuant to aplea agreement that included a waiver of appeal. The guilty plea also satisfied other unchargedproperty crimes, a jailhouse assault charge and potential contraband charges and required thatdefendant admit or cooperate in the prosecution of those crimes. Consistent with that agreement,County Court imposed the agreed-upon prison sentence of 12 years with five years of postreleasesupervision. In 2015, defendant moved to vacate the judgment of conviction pursuant to CPL440.10, which was denied without a hearing. He now appeals from the judgment of convictionand, with permission, from the order denying his motion to vacate.
[*2] Defendant's sole contention on direct appeal is that theagreed-upon sentence is harsh and excessive. Contrary to his claim, the record reflects that hiscombined oral and written waiver of appeal was knowing, voluntary and intelligent, precludingthis challenge (see People vSanders, 25 NY3d 337, 339-341 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Toledo, 144 AD3d 1332,1332-1333 [2016]). The minutes of the plea proceedings reflect that defendant was advised thatan appeal waiver was a condition of the plea, he indicated that he understood and voluntarilyagreed to the terms of the plea and the waiver, and he was expressly advised that the waiver ofhis right to appeal is separate and distinct from the rights that he automatically forfeited by hisguilty plea (see People v Lopez, 6 NY3d at 256; People v Belile, 137 AD3d 1460, 1461 [2016]). Defendant thensigned a written waiver of appeal in open court that outlined the issues that survive the appealwaiver and otherwise waived "any aspect of this matter" and specifically waived any right toargue that the sentence is harsh or excessive. The written waiver, like the oral colloquy, alsoreflected that defendant had sufficient time to discuss the waiver with counsel. As we arepersuaded that defendant understood and voluntarily agreed to waive his right to appeal, heforfeited any challenge to the severity of the sentence (see People v Ramos, 7 NY3d 737, 738 [2006]; People vLopez, 6 NY3d at 255-256; Peoplev Mann, 140 AD3d 1532, 1533 [2016]).
We further find that defendant's motion to vacate the judgment was properly denied withouta hearing (see CPL 440.30 [4] [d]). Defendant's ineffective assistance of counsel claim ispremised solely upon the allegation in his affidavit that defense counsel advised him, during theplea allocution, to provide untruthful responses and lie about his involvement in the underlyingrobbery. While defendant initially equivocated during the plea allocution regarding the nature ofhis involvement in the robbery, after conferring with counsel, defendant unreservedly set forthand admitted, under oath, his specific role in helping Wells commit this robbery, and herepeatedly assured County Court that he had assisted in this crime. Given that defendant'sallegations on the motion are contradicted by his sworn account and "unsupported by any otheraffidavit or evidence" and "there is no reasonable possibility that such allegation[s] [are] true,"the court properly denied the motion without a hearing (CPL 440.30 [4] [d]; see People v Ryder, 136 AD3d1109, 1109-1110 [2016], lv denied 27 NY3d 1005 [2016]; People v LaPierre, 108 AD3d 945,946 [2013]; People v Vallee, 97AD3d 972, 974 [2012], lv denied 20 NY3d 1104 [2013]).
Defendant's related contention on the motion that his plea was not voluntary due to thealleged ineffective assistance of counsel survives his appeal waiver but was not preserved by apostallocution motion to withdraw, despite the opportunity to do so (see CPL 220.60 [3];People v Oddy, 144 AD3d1322, 1323 [2016]). Thus, County Court properly denied the motion to vacate on this groundbecause the necessary facts, which do not appear on the record on direct appeal, could "havereadily been made to appear on the record" (CPL 440.10 [3] [a]) by a postallocution motion (see People v Dickson-Eason, 143AD3d 1013, 1015 [2016], lv denied 28 NY3d 1123 [2016]). Were we to address theissue, we would find that defendant's guilty plea was knowing, voluntary and intelligent (see generally People v Conceicao, 26NY3d 375, 382 [2015]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]).
Defendant's motion to vacate was also premised upon a claim of actual innocence, which wasbased upon Wells' recantation of his grand jury testimony after defendant was indicted but beforedefendant pleaded guilty. Assuming, without deciding, that there is a "freestanding actualinnocence claim beyond that provided by CPL 440.10" (People v Caldavado, 26 NY3d 1034, 1037 [2015] [internalquotation marks omitted]) as recognized by the Second Department in People v Hamilton (115 AD3d 12,15 [2014]), and that this claim applies to charges resolved [*3]bya guilty plea,[FN1] we findthat defendant's submissions failed to establish his "factual innocence" (id. at 23).Notably, recantation evidence is viewed as an "extremely unreliable form of evidence" (People v Larock, 139 AD3d 1241,1243 [2016], lv denied 28 NY3d 932 [2016]) and, here, the record reflects that Wells'testimony before the grand jury was corroborated and that his recantation was improperlyinfluenced by defendant and friends and family on his behalf.[FN2] As this claim was not based upon "reliableevidence" (People v Hamilton, 115 AD3d at 23), the motion to vacate was properlydenied.
Egan Jr., Lynch, Devine and Clark, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote 1:Defendant's reliance on Wells'recantation did not constitute newly discovered evidence because it was known prior to his guiltyplea and, more importantly, because vacatur of a judgment of conviction on this ground is onlyavailable where there has been a "verdict . . . after [a] trial" (CPL 440.10 [1] [g]; see People v Larock, 139 AD3d1241, 1243 [2016], lv denied 28 NY3d 932 [2016]).
Footnote 2:County Court's order denying themotion to vacate indicates that Wells was subsequently convicted, upon his guilty plea, ofattempted bribe receiving by a witness in regard to his recantation.