| People v Chaney |
| 2018 NY Slip Op 02834 [160 AD3d 1281] |
| April 26, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Nakia Terry Chaney, Appellant. |
Aaron A. Louridas, Delmar, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Rumsey, J. Appeals (1) from a judgment of the County Court of Albany County (Lynch, J.),rendered July 9, 2015, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fourth degree, and (2) by permission, from two ordersof said court, entered August 18, 2016 and March 23, 2017, which denied defendant's motionspursuant to CPL article 440 to vacate the judgment of conviction and to set aside the sentence,without hearings.
Pursuant to a plea agreement, defendant waived indictment and pleaded guilty to criminalpossession of a controlled substance in the fourth degree as charged in a superior courtinformation (hereinafter SCI), stemming from his admitted possession of prepackaged bags ofheroin. As part of the agreement, defendant executed a written waiver of appeal. After defendantmade a pro se motion to withdraw his guilty plea premised upon a claim of ineffective assistanceof counsel, County Court assigned new counsel and, at the next appearance, defendant, with theassistance of substitute counsel, expressly withdrew that motion. County Court then imposed theagreed-upon prison sentence of 2
Initially, defendant's combined oral and written waiver of appeal is valid (see People v Tulip, 150 AD3d1564, 1565 [2017]). The plea minutes reflect that defendant was advised that a waiver ofappeal was a condition of the plea agreement, County Court explained that defendant ordinarilyretained the right to appeal and made clear that the waiver was separate and distinct from thetrial-related rights that he automatically forfeited by his guilty plea, and defendant indicated thathe understood and voluntarily waived this right (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Hutchison, 151 AD3d1481, 1482 [2017]). Defendant reviewed the written waiver of the right to appeal withcounsel that specifically precluded a challenge to the agreed-upon sentence. After review, hesigned the waiver—which also recited that his counsel had informed him of the legalramifications of the waiver—and stated to the court that he understood the waiver andagreed to be bound by it. Accordingly, we are satisfied that the waiver of appeal was knowing,voluntary and intelligent (see People vSanders, 25 NY3d 337, 339-341 [2015]). Thus, defendant's challenges to the sufficiencyof the plea allocution (see People vWelden, 156 AD3d 1241, 1241 [2017]) and to the agreed-upon sentence as harsh andexcessive are precluded (see People v Lopez, 6 NY3d at 255-256; People v Tulip,150 AD3d at 1565-1566).
Defendant claims that the SCI was jurisdictionally defective. While this claim survives thevalid appeal waiver and is not subject to preservation rules (see People v Pierce, 14 NY3d 564, 570 n 2 [2010]), it lacks merit.An SCI "is jurisdictionally defective only if it does not effectively charge the defendant with thecommission of a particular crime—for instance, if it fails to allege that the defendantcommitted acts constituting every material element of the crime charged" (People vD'Angelo, 98 NY2d 733, 734-735 [2002]; see People v Brice, 146 AD3d 1152, 1153-1154 [2017], lvdenied 29 NY3d 996 [2017]). Here, the SCI "cited the pertinent Penal Law section andrecited the statutory elements of the crime and, accordingly, [it] was not jurisdictionallydefective" (People v Dubois, 150AD3d 1562, 1564 [2017]; seePeople v Kamburelis, 100 AD3d 1189, 1189-1190 [2012]). Defendant's challenges tothe evidence underlying the charge and to the sufficiency of the factual allegations arenonjurisdictional in nature and, thus, precluded by the guilty plea and appeal waiver (seePeople v Brice, 146 AD3d at 1154; People v Young, 100 AD3d 1186, 1188 [2012], lv denied21 NY3d 1021 [2013]; People v George, 261 AD2d 711, 713 [1999], lv denied93 NY2d 1018 [1999]).
Next, we reject defendant's argument that County Court failed to abide by the sentencingpromise. While defendant is correct that, "[a] guilty plea induced by an unfulfilled promise eithermust be vacated or the promise honored" (People v Collier, 22 NY3d 429, 433 [2013] [internal quotationmarks, brackets and citation omitted], cert denied 573 US &mdash, 134 S Ct 2730[2014]), the record reflects that he in fact received the promised sentence. To that end, CountyCourt advised defendant during the plea allocution that the agreed-upon 2
Defendant's claim that County Court abdicated its sentencing responsibility is belied by therecord. At sentencing, defendant requested, in lieu of the agreed-upon prison term, that the courtimpose judicial diversion (see CPL 216.05 [4]) or parole supervision (see CPL410.91). The court explained its reasons for declining these requests,[FN2] including that defendant had previously beenrejected from drug court and that it found no reason to deviate from the plea agreement, whileexpressly recognizing that it retained sentencing discretion to deviate from that agreement (whileallowing the People an opportunity to withdraw consent to the plea agreement). As the court wasaware of and exercised its discretionary sentencing authority, we discern no error (see Peoplev Schultz, 73 NY2d 757, 758 [1988]; People v Farrar, 52 NY2d 302, 305-306[1981]; People v Mattucci, 92 AD3d1029, 1029-1030 [2012], lv denied 19 NY3d 964 [2012]).
Further, we find that County Court properly denied defendant's pro se motions to, amongother requested relief, vacate the judgment of conviction and set aside the sentence, withouthearings. "On a motion to vacate a judgment of conviction, a hearing is only required if thesubmissions 'show that the nonrecord facts sought to be established are material and wouldentitle the defendant to relief' " (People v Brandon, 133 AD3d 901, 903-904 [2015] [bracketsomitted], lv denied 27 NY3d 992 [2016], quoting People v Satterfield, 66 NY2d796, 799 [1985]; see CPL 440.30 [5]). With regard to defendant's contentions thatsuppression hearings should have been held, the record reflects that he never moved to suppressthe evidence and, accordingly, his valid guilty plea, in which he expressly waived the right topretrial hearings and defenses, and his appeal waiver waived any challenge to the admissibility ofevidence (see CPL 710.70 [3]; People v Felker, 155 AD3d 1258, 1259 [2017]; see also Peoplev Sanders, 25 NY3d at 342).
Defendant's claim that he was deprived of the effective assistance of counsel due to counsel'sfailure to move to suppress certain evidence survives the appeal waiver only to the extent that itimplicates the voluntariness of his guilty plea, but it was not preserved for appellate review(see CPL 220.60 [3]; People vHall, 147 AD3d 1151, 1152 [2017], lv denied 29 NY3d [*4]1080 [2017]; People v Wicks, 83 AD3d 1223, 1225 [2011], lv denied 17NY3d 810 [2011]). As defendant could have raised this issue prior to sentencing andunjustifiably failed to do so, and the necessary facts do not appear in the record on direct appeal,County Court properly denied the motion to vacate the judgment on this ground (see CPL440.10 [3] [a]; People v Howe, 150AD3d 1321, 1323 [2017]; People vOddy, 144 AD3d 1322, 1324 [2016], lv denied 29 NY3d 1131 [2017]). "In anyevent, the failure to request a suppression hearing, standing alone, does not establish that defensecounsel provided ineffective assistance, particularly in the absence of any basis upon which toconclude that a defendant had a colorable claim or that counsel's actions were not premised upona legitimate strategy" (People v Hall, 147 AD3d at 1152 [internal quotation marks andcitations omitted]). Defendant's conclusory and unsupported allegations fail to establish any basisupon which to find that there was a viable claim for suppression or that counsel lacked a strategicreason for proceeding without a suppression motion, namely, the advantageous plea offer; thus,the motion was properly denied without a hearing (see CPL 440.10 [3] [a]; 440.30 [4] [a],[b], [d]). To that end, we note that during the plea allocution, defendant assured the court that hehad adequate time to confer with counsel about the charge, the evidence and any defenses, hewas satisfied with counsel's representation and he expressly waived pretrial hearings. Further,"counsel secured a favorable plea deal" well below the maximum potential sentence "which maynot have been available after a suppression hearing" (People v Hall, 147 AD3d at 1152),and nothing in the record or motion calls into doubt the apparent effectiveness of counsel (see People v Caban, 5 NY3d 143,152 [2005]; People v Rapp, 154AD3d 1007, 1009 [2017]).
Defendant's request in the motion for DNA testing on a jacket where the drugs were locatedis not warranted because the crime he pleaded guilty to—criminal possession of acontrolled substance in the fourth degree—is not among the crimes for which CountyCourt must grant a motion seeking DNA evidence (see CPL 440.30 [1-a] [a] [2]).Defendant's further request to "expand the record" on appeal to permit him, among other things,to make statements relative to sentencing was properly denied, as this request was not made atsentencing and the record further reflects that he and defense counsel were afforded a full andfair opportunity to be heard at sentencing (see CPL 380.50 [1]; 440.10 [2] [b]; [3] [a];440.30 [4] [a], [c]).
Finally, with regard to defendant's claims of actual innocence, his submissions failed toestablish his "factual innocence" (People v Howe, 150 AD3d at 1323 [internal quotationmarks and citation omitted]; accordPeople v Caldavado, 26 NY3d 1034, 1037 [2015]). We have considered all of theremaining aspects of defendant's first motion to vacate the judgment of conviction pursuant toCPL 440.10 and find that it was properly denied without a hearing. Nor do we find any error withregard to County Court's summary denial of defendant's second motion pursuant to CPL 440.10and 440.20, as the basis for the motion was "previously determined on the merits" on the firstmotion to vacate (CPL 440.10 [3] [b]) or could have been so raised (see CPL 440.10 [3][c]).
Garry, P.J., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the judgment and ordersare affirmed.
Footnote 1:To the extent that defendantchallenges—in his motions pursuant to CPL article 440—the calculation of jail timecredit, "the proper vehicle for such claim is a CPLR article 78 proceeding" (People v Whalen, 101 AD3d 1167,1169 n 2 [2012] [internal quotation marks, brackets, ellipsis and citation omitted], lvdenied 20 NY3d 1105 [2013]; seee.g. Matter of Maldonado v Howard, 148 AD3d 1501, 1502 [2017], lv denied 29NY3d 916 [2017]).
Footnote 2:County Court denied defendant'sbelated postplea request for consideration of judicial diversion both because defendant nevertimely applied for participation in this program (see CPL 216.05 [1]; cf. People v Clarke, 155 AD3d1242, 1242-1243 [2017], lv denied 30 NY3d 1114 [2018]) and because the courtconcluded that the plea deal contained the appropriate treatment plan for defendant's substanceabuse problems.