| People v Meddaugh |
| 2017 NY Slip Op 04167 [150 AD3d 1545] |
| May 25, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v HarleyMeddaugh, Appellant. |
Todd G. Monahan, Schenectady, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered April 25, 2014, convicting defendant upon her plea of guilty of the crime of criminalsale of a controlled substance in the third degree.
In December 2013, while on parole release, defendant was arrested and charged in an11-count indictment with criminal sale of a controlled substance in the third degree (four counts),criminal possession of a controlled substance in the third degree (four counts) and conspiracy inthe fourth degree (three counts). In March 2014, defendant, pursuant to a negotiated pleaagreement that required her to, among other things, execute a waiver of appeal, pleaded guilty tocriminal sale of a controlled substance in the third degree. Consistent with the terms of the pleaagreement, County Court sentenced defendant, as a second felony offender, to a prison term ofseven years, to be followed by two years of postrelease supervision. Defendant nowappeals.[FN*]
[*2] We affirm. Initially, while the negotiated plea agreementrequired defendant to execute a waiver of appeal, our review of the record reveals that CountyCourt failed to explain the significance of an appeal waiver or convey that it is "separate anddistinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]; see People v Sanders, 25NY3d 337, 340-341 [2015]; Peoplev Bates, 146 AD3d 1075, 1075 [2017]; People v Lloyd, 142 AD3d 1250, 1250 [2016], lv denied 28NY3d 1073 [2016]). Although defendant acknowledged that she understood that the pleaagreement required her to execute a waiver of appeal whereby she would waive certain appellaterights, the record neither contains a written waiver of appeal signed by defendant nor reflects thatany inquiry was made as to whether she had read such a waiver and understood it (see People v Lemon, 137 AD3d1422, 1423 [2016], lv denied 27 NY3d 1135 [2016]; People v Rabideau, 130 AD3d1094, 1095 [2015]). Under these circumstances, we conclude that the waiver of appeal wasinvalid and does not preclude defendant's claim of ineffective assistance of counsel or herchallenge to the severity of the sentence imposed.
Defendant argues that her guilty plea was involuntary because it was induced by unfulfilledpromises regarding the length of her sentence and that she would be admitted into a correctionalfacility wherein she could have given birth to her child and purportedly remained with that childfor 18 months thereafter. While "[a] guilty plea induced by an unfulfilled promise either must bevacated or the promise honored" (Peoplev Collier, 22 NY3d 429, 433 [2013] [internal quotation marks and citation omitted],cert denied 573 US &mdash, 134 S Ct 2730 [2014]; see People v Selikoff, 35NY2d 227, 241 [1974], cert denied 419 US 1122 [1975]; People v Roberts, 293AD2d 916, 917 [2002]), the record does not establish any of defendant's allegations. Defendantindicated that she understood the terms of the plea agreement—which did not specify thecorrectional facility to which she would be assigned or indicate whether she would receiveadditional confinement for having violated parole—and requested that County Courtadhere to its terms. Defendant also expressed that, among other things, she had been givenenough time to discuss her plea with her counsel and her family members, that she wasvoluntarily giving up her trial-related rights and that she understood that she would be allowed towithdraw her plea if County Court decided to deviate from the proposed sentence after reviewingthe presentence report. Accordingly, we are satisfied that the minutes of the plea colloquy amplyrefute any claim of off-the-record promises allegedly made to defendant that are not entitled tojudicial recognition (see Matter of Benjamin S., 55 NY2d 116, 120 [1982]; People vFrederick, 45 NY2d 520, 526 [1978]; People v Selikoff, 35 NY2d at 244; People v Decker, 139 AD3d 1113,1116 [2016], lv denied 28 NY3d 928 [2016]; People v Crowell, 130 AD3d 1362, 1363 [2015], lv denied26 NY3d 1144 [2016], cert denied 580 US &mdash, 137 S Ct 1333 [2017]). In addition,to the extent that defendant's contentions are based upon off-the-record communications betweendefendant and counsel or her parole officer, they are not properly addressed in this direct appeal(see People v Fairweather, 147AD3d 1153, 1154 [2017]; People vLewis, 143 AD3d 1183, 1185 [2016]).
With regard to defendant's ineffective assistance of counsel claim, even if we were to agreewith defendant's contention that her counsel's performance was deficient for failing to advise herof or request judicial diversion under the program created by CPL article 216, whether an eligibledefendant will be offered judicial diversion pursuant to that article remains within the trial court'sdiscretion, and defendant is not automatically entitled to judicial diversion (see People v Buswell, 88 AD3d1164, 1165 [2011]; cf. People vPittman, 140 AD3d 989, 989 [2016]; People v Powell, 110 AD3d 1383, 1383 [2013]). Moreover, therecord reflects that [*3]defendant's counsel negotiated a favorableplea agreement whereby defendant pleaded guilty to one count of criminal sale of a controlledsubstance in the third degree in satisfaction of an 11-count indictment and in exchange for thePeople's promise to not bring additional charges for the discovery of narcotics within defendant'shome when she was arrested by parole officers. Accordingly, in light of the foregoing anddefendant's express acknowledgment during the plea colloquy that she was satisfied withcounsel's representation, we conclude that defendant received meaningful representation and thatnothing in the record before us casts doubt on the apparent effectiveness of counsel (see People v Ramos, 135 AD3d1234, 1235 [2016], lv denied 28 NY3d 935 [2016]; People v Lord, 128 AD3d 1277,1278 [2015]; People v Ramey, 123AD3d 1290, 1290-1291 [2014], lv denied 25 NY3d 953 [2015]).
Although, as noted above, defendant's challenge to the sentence as harsh and excessive is notprecluded by the invalid appeal waiver (see People v Lopez, 6 NY3d at 256; People v Cox, 146 AD3d 1154,1155 [2017]; People v Lloyd, 142 AD3d at 1250), we do not find that the sentence isharsh or excessive. Notwithstanding defendant's purported eligibility for judicial diversion, aswell as her age, mental health issues and then-pregnancy, County Court imposed the sentencethat defendant expressly agreed to receive in exchange for her guilty plea. Thus, we find noextraordinary circumstances or any abuse of discretion warranting a modification of the sentencein the interest of justice (see People vRamirez, 98 AD3d 1168, 1168 [2012]; People v Lasanta, 89 AD3d 1324, 1324 [2011]; People vJones, 257 AD2d 920, 920 [1999]).
Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Premised upon the allegedineffective assistance of counsel, defendant moved to vacate the judgment of conviction andsentence pursuant to CPL 440.10. County Court denied that motion, and this Court declinedpermission for defendant to appeal therefrom (2015 NY Slip Op 92470[U] [2015]). Thereafter,defendant moved this Court to supplement the record in this appeal to include, among otherthings, defendant's postjudgment motion, and this Court also denied that motion (2016 NY SlipOp 78475[U] [2016]).