| People v Abraham |
| 2018 NY Slip Op 06593 [165 AD3d 1318] |
| October 4, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jason R. Abraham, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Rumsey, J. Appeals (1) from a judgment of the County Court of Saratoga County (MurphyIII, J.), rendered May 5, 2016, convicting defendant upon his plea of guilty of the crime ofvehicular assault in the first degree, and (2) by permission, from an order of said court, enteredOctober 6, 2016, which denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment of conviction, without a hearing.
In August 2015, after a day of drinking, defendant was driving his vehicle at a high rate ofspeed on Route 9 in the Town of Moreau, Saratoga County when he struck the rear of a vehiclethat was in front of him causing it to veer off the road, strike a utility pole and flip over a numberof times. The two occupants, who were temporarily trapped inside the vehicle, sustained severalinjuries as a result of the crash. After the impact, defendant's vehicle continued along the road fora short distance until it eventually came to a stop. When the police and emergency respondersarrived at the scene, defendant was found lying in the road near his vehicle, apparentlyunconscious. He was transported to the hospital where he regained consciousness and consentedto a blood test. The results of the blood test revealed that he had a blood alcohol content of.18%.
Thereafter, defendant was charged in an indictment with multiple crimes arising from theaccident. Following extended proceedings, he pleaded guilty to vehicular assault in the firstdegree in satisfaction of the indictment and waived his right to appeal. Prior to sentencing, hemade an unsuccessful pro se postallocution motion to, among other things, withdraw his guiltyplea. He was thereafter sentenced, in accordance with the terms of the plea agreement, to1
Initially, defendant contends that his guilty plea was not knowing, voluntary and intelligentbecause he was suffering from anxiety and posttraumatic stress disorder at the time that heentered the plea, and was unduly pressured by his counsel to plead guilty. As conceded by thePeople, this claim survives defendant's unchallenged waiver of the right to appeal (see People v Conley, 161 AD3d1486, 1486-1487 [2018]; People vForest, 141 AD3d 967, 968 [2016], lv denied 28 NY3d 1145 [2017]) and waspreserved by his pro se postallocution motion to withdraw his plea (see CPL 220.60 [3];People v Massia, 131 AD3d1280, 1281 [2015], lv denied 26 NY3d 1041 [2015]). Nevertheless, we finddefendant's claim to be without merit.
During the plea proceedings, defendant did not indicate that he was suffering from anymental health impairments or disclose that he was under the care of a psychiatrist orpsychologist. He related that he fully understood the consequences of pleading guilty, includingthe rights that he was forfeiting, and was satisfied with the services of counsel. Notably, duringthe plea proceedings, defendant did not reveal any coercion on the part of counsel concerning hisentry of the guilty plea. Although he raised the issue of coercion in his pro se postallocutionmotion to withdraw his plea, he failed to submit persuasive evidentiary proof in support thereof.Accordingly, we conclude that defendant's guilty plea was not a product of mental distress (see People v Pixley, 150 AD3d1555, 1556 [2017], lv denied 30 NY3d 952 [2017]) or coercion (see People v Khan, 139 AD3d1261, 1263 [2016], lv denied 28 NY3d 932 [2016]).
Defendant further contends that his counsel committed numerous errors that deprived him ofthe effective assistance of counsel. To the extent that such errors impacted the voluntariness ofhis guilty plea, they survive his unchallenged appeal waiver (see People v Turner, 27 AD3d 962, 964 [2006]; People vWhite, 300 AD2d 830, 832 [2002], lv denied 99 NY2d 586 [2003], lv deniedupon reconsideration 99 NY2d 633 [2003]) and were preserved by his pro se postallocutionmotion (see People v Ramey, 123AD3d 1290, 1290 [2014], lv denied 25 NY3d 953 [2015]). However, contrary todefendant's assertions, the record does not reveal that counsel failed to properly investigate orexplore possible defenses or that he compelled defendant to enter a guilty plea. Moreover, bypleading guilty, defendant forfeited his challenges to counsel's motion practice and discoveryefforts (see People v Rutigliano, 159AD3d 1280, 1281 [2018], lv denied 31 NY3d 1121 [2018]; People v Islam, 134 AD3d 1348,1349 [2015]). In any event, given that counsel negotiated a favorable disposition in the face ofsubstantial incriminating evidence, we find that defendant was provided meaningfulrepresentation (see People v Baldi, 54 NY2d 137, 147 [1981]; People v Nieves,302 AD2d 625, 626 [2003], lv denied 100 NY2d 541 [2003]). We have considereddefendant's remaining claims, including his challenge to the blood test results, and find them tobe lacking in merit.[FN*]
Egan Jr., J.P., Lynch, Devine and Clark, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote *:We note that defendant has notraised any arguments specifically addressing the denial without a hearing of his CPL 440.10motion, which encompassed the claims that he now raises on direct appeal.