| People v Gray |
| 2017 NY Slip Op 05873 [152 AD3d 1068] |
[*1]
| 1 The People of the State of New York,Respondent, v Roscheem Gray, Appellant. |
Aaron A. Louridas, Delmar, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.),rendered October 31, 2014, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a controlled substance in the third degree and criminally using drug paraphernaliain the second degree, and (2) by permission, from two orders of said court, entered February 24,2015 and August 19, 2015, which denied defendant's motions pursuant to CPL 440.10 to vacatethe judgment of conviction, without a hearing.
Pursuant to a negotiated plea agreement, and in full satisfaction of a three-count indictment,defendant pleaded guilty to criminal possession of a controlled substance in the third degree andcriminally using drug paraphernalia in the second degree. The plea agreement included a waiverof the right to appeal, but with a reservation relative to issues arising from theMapp/suppression hearing. County Court sentenced defendant, consistent with the termsof the agreement, to an aggregate prison term of six years, to be followed by two years ofpostrelease supervision. Defendant appeals.
Initially, contrary to defendant's contention, we find that his waiver of appeal was knowing,voluntary and intelligent (see People vSanders, 25 NY3d 337, 340 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Dolberry, 147 AD3d1149, 1150 [2017]; People v Lanahan, 276 AD2d 906, 909 [2000], lv denied95 NY2d 965 [2000]). County Court specifically advised defendant that his waiver of appeal was"separate and apart" from the other waivers [*2]related to hisguilty plea, which defendant acknowledged both verbally and also by signing a written appealwaiver (see People v Upshur, 150AD3d 1552, 1553 [2017]; People vTaylor, 144 AD3d 1317, 1318 [2016], lv denied 28 NY3d 1151 [2017]; compare People v Williford, 124 AD3d1076, 1077 [2015], lv denied 25 NY3d 1209 [2015]). The valid waiver thusprecludes defendant's challenges based upon the Sandoval compromise, the denial of hismotion to suppress certain oral statements, and the asserted Brady violation (see People v Chant, 140 AD3d1645, 1648 [2016], lv denied 28 NY3d 970 [2016]; People v Stone, 105 AD3d 1094,1095 [2013]; People v Colon, 101AD3d 1161, 1161-1162 [2012], lv denied 21 NY3d 1003 [2013]).[FN1]
As to the Mapp issues, defendant claims that the warrantless search of his residencewas improper, and that the consent provided by his girlfriend, with whom he shared theresidence, was invalid. At the suppression hearing, a senior investigator with the Town ofCoeymans Police Department testified that he assisted a fellow officer in conducting a trafficstop of a vehicle driven by the girlfriend, and observed her "fiddling with her pockets" as hespoke with her. She then produced several oxycodone pills from her pocket and stated that shehad a valid prescription for them at her apartment, which she offered to show to the investigatorand his fellow officer. Upon their arrival at the apartment, the girlfriend unlocked the door,invited the officers in and showed them a prescription bottle. The bottle did not match the pillsthat had been found earlier on her person. Upon request, the girlfriend then provided verbalconsent for the officers to search the apartment. The second officer picked up a digital scale fromatop a kitchen cabinet that had a white powdery residue. The investigator then requested andobtained the girlfriend's written consent to continue the search. The girlfriend showed the officersto a closet in the bedroom, with an open door and containing both men's and women's clothing,where they found a sweatshirt wrapped around a plastic bag containing over 80 ounces ofcocaine.[FN2]
We agree with County Court that the evidence established that the police reasonably reliedupon the girlfriend's apparent authority to consent to the search of the shared premises, includingthe closet (see People v Cosme, 48 NY2d 286, 292-293 [1979]). "Even in the absence ofa warrant, police may lawfully search a residence where an inhabitant with apparent authority toconsent to the search freely and voluntarily does so" (People v Grillo, 128 AD3d 1103, 1104 [2015] [citations omitted]).The written consent form did not advise the girlfriend that she had the right to refuse consent,although the investigator testified that he informed her of this verbally. However, neither thefailure to give such advice nor the fact that the girlfriend had been briefly handcuffed after sheproduced the oxycodone pills, without more, necessarily rendered her consent involuntary (see People v Curtis, 144 AD3d1199, 1200 [2016]; People v Williford, 124 AD3d at 1078). Reviewing the totality ofthe circumstances presented here, and deferring to County Court's credibility determinations(see People v Garnsey, 288 AD2d 761, 762 [2001], lv denied 97 NY2d 754[2002]), we find that the girlfriend's consent was freely and voluntarily given.
[*3] "Defendant's argument that his guilty plea was notknowing, voluntary and intelligent is not precluded by his waiver of appeal and was preserved byhis unsuccessful motion to withdraw his guilty plea" (People v Pixley, 150 AD3d 1555, 1556 [2017] [citation omitted];see People v Romano, 45 AD3d910, 912 [2007], lv denied 10 NY3d 770 [2008]). However, to the extent thatdefendant asserts that the ineffective assistance of counsel affected the voluntariness of his plea,we find this claim to lack merit. Notably, many of the claims that defendant advances on appealare the same challenges that his trial counsel had already presented on his behalf, and he receivedan advantageous plea offer based upon those efforts (see People v Dickson-Eason, 143 AD3d 1013, 1014 [2016], lvdenied 28 NY3d 1123 [2016]; People v Briggs, 138 AD3d 1355, 1356 [2016], lv denied28 NY3d 927 [2016]). Upon review, we find no error in County Court's denial of the motion towithdraw his plea, which was addressed to its discretion (see People v Young, 112 AD3d 1068, 1069 [2013], lvdenied 22 NY3d 1204 [2014]; People v Mitchell, 73 AD3d 1346, 1347 [2010], lv denied15 NY3d 922 [2010]).
We next consider defendant's related challenge to his predicate felony status, which similarlysurvives his appeal waiver (see People vHartfield, 151 AD3d 1116, 1118 [2017]; People v Glynn, 72 AD3d 1351, 1351-1352 [2010], lvdenied 15 NY3d 773 [2010]) and was also preserved for review. In a prior plea offer thatdefendant had rejected, the People expressed their intent to use defendant's prior violent felonyconviction for criminal possession of a weapon in the third degree to determine his predicatefelony status. In the course of the subject plea proceeding, County Court stated that defendantwould be sentenced as a nonviolent predicate offender to an aggregate prison term of six yearsfollowed by three years of postrelease supervision. However, at sentencing, the People filed apredicate felony statement in which they, once again, sought to use defendant's past violentfelony as his predicate offense. Defendant was afforded an opportunity to review that statementand confer with counsel and acknowledged the conviction; defendant's challenge was that he hadfiled a motion to vacate that prior conviction.[FN3] However, that conviction met the statutoryrequirements to be used as a predicate violent felony (see Penal Law§§ 70.02 [1] [c]; 70.06 [1] [b]; 70.70 [4] [a]), and we find no error in CountyCourt using it to determine defendant's predicate felony status (see CPL 400.21;People v Harris, 61 NY2d 9, 20 [1983]; see also People v Hartfield, 151 AD3d at1118; compare People v Lewis, 45AD3d 898, 899 [2007]).
Finally, and significantly, County Court did not increase the agreed-upon prisonterms.[FN4] [*4]The six-year prison term, which placed defendant in the middle ofthe permissible sentencing range if his prior felony conviction was not a violent felony(see Penal Law § 70.70 [3] [b] [i]), is the statutory minimum prison term fora second felony drug offender previously convicted of a violent felony (see Penal Law§ 70.70 [1] [b]; [4] [b] [i]). As such, we find that defendant received the benefit ofhis bargain (compare People v Lewis, 45 AD3d at 899). Defendant's remainingcontentions have been reviewed and determined to lack merit.
Peters, P.J., Rose, Clark and Rumsey, JJ., concur. Ordered that the judgment and orders areaffirmed.
Footnote 1:Were these issues before us, wewould have found that the Brady claim lacks merit, and that County Court reached anappropriate Sandoval compromise (see People v Green, 270 AD2d 566, 568-569[2000], lv denied 95 NY2d 853 [2000]) and did not err in denying the motion to suppressdefendant's statements (see People v Rodney, 85 NY2d 289, 293 [1995]).
Footnote 2:The investigator obtained asearch warrant thereafter, based upon the consent previously given.
Footnote 3:Defendant's challenge ispremised on his assertion that the legislature's repeal of the subsection under which he wasconvicted of criminal possession of a weapon in the third degree prevented County Court fromusing the sentence as a predicate felony (see Penal Law § 265.02 [former(4)]; L 2006, ch 742, § 1). However, the Legislature did not decriminalize the act upon which defendant was convicted; instead, that actnow constitutes criminal possession of a weapon in the second degree (see Penal Law§ 265.03 [3]; L 2006, ch 742, § 2). Regardless, at the time thatdefendant was convicted, his act constituted a violent felony (see Penal Law§ 70.70 [1] [former (c)]; L 2007, ch 7, § 32).
Footnote 4:In fact, defendant received anadditional benefit when County Court reduced the negotiated postrelease supervision term fromthree years to two years (see e.g. Peoplev Collier, 91 AD3d 987, 988 [2012], affd 22 NY3d 429 [2013], certdenied 573 US &mdash, 134 S Ct 2730 [2014]).