| People v LaPierre |
| 2020 NY Slip Op 07626 [189 AD3d 1813] |
| December 17, 2020 |
| Appellate Division, Third Department |
[*1](December 17, 2020)
| The People of the State of New York,Respondent, v Eugene LaPierre, Appellant. |
G. Scott Walling, Slingerlands, for appellant.
Gordon W. Eddy, Special Prosecutor, Ballston Spa, for respondent.
Colangelo, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered November 27, 2013, convicting defendant upon his plea of guilty ofthe crime of attempted promoting prison contraband in the first degree.
Defendant, while serving a sentence for a robbery conviction, was involved in an altercationwith another inmate who sustained multiple lacerations. During a subsequent medicalexamination, defendant admitted that he possessed a weapon and produced a sharpened toiletbrush handle with a rubber band grip that had been secreted on his person. Defendant wascharged by indictment with criminal possession of a weapon in the third degree and promotingprison contraband in the first degree, both based upon his possession of the sharpened toiletbrush handle. County Court thereafter issued a decision addressing claims raised in omnibusmotions submitted by defendant pro se and by defense counsel that, among other things, deniedthe motions to dismiss the indictment. After a detailed colloquy, County Court granteddefendant's request to proceed pro se, and additional pro se motions were addressed. Following aHuntley hearing, defendant's motion to suppress his statement regarding the secretedweapon was denied.
At the next appearance, County Court advised defendant that it had received his letterindicating that he would not continue to represent himself on these charges; given that he hadappeared without retained counsel, the court assigned the Assistant Public Defender who hadpreviously represented him on these charges, who resumed his representation of defendant. Afterconferring with counsel, defendant pleaded guilty under count 2 of the indictment to the reducedcharge of attempted promoting prison contraband in the first degree[FN*] and executed a written waiver of appeal, inexchange for a prison sentence of 1
Defendant failed to appear for sentencing and, after taking testimony, County Courtconcluded that he had voluntarily refused to attend and proceeded in his absence. The court thendenied defendant's pro se motion to withdraw his guilty plea which was premised on, amongother allegations, claims of innocence, coercion to enter a guilty plea and inadequate time toprepare a defense. The court sentenced defendant in absentia, as a second felony offender, to theagreed-upon prison sentence, to be served consecutively to the sentence he was then serving.Defendant appeals.
We affirm. Initially, we agree with defendant that his waiver of appeal is invalid, as CountyCourt failed to advise him that the right to appeal is separate and distinct from the rights he wasautomatically forfeiting by pleading guilty, and the written waiver of appeal signed by defendantwas similarly deficient (see People vLopez, 6 NY3d 248, 256 [2006]; People v Kehn, 173 AD3d 1564, 1564 [2019]; People v Morrow, 163 AD3d1265, 1265 [2018]). Nonetheless, we find that the issues raised by defendant are eitherprecluded [*2]by his guilty plea or lack merit.
Defendant challenges the voluntariness of his guilty plea and, relatedly, argues that the denialof his motion to withdraw his plea constituted an abuse of discretion. Defendant's claims that hisplea was coerced and that he was denied adequate time to prepare a defense are unsupported bythe record of the plea allocution, which reflects that he assured County Court, under oath, that heunderstood the terms of the plea agreement and had not been forced to plead guilty; he confirmedthat he had sufficient time to confer with counsel to discuss possible defenses, the strengths andweaknesses of his case and the consequences of a guilty plea, and that he was satisfied withcounsel's services. Defendant's allegations do not amount to coercion but, rather, represent "thetype of situational coercion faced by many defendants who are offered a plea deal, which did notrender his plea involuntary" (People vBlanford, 179 AD3d 1388, 1392 [2020] [internal quotation marks and citation omitted],lv denied 35 NY3d 968 [2020]).
Although defendant complains that he had difficulty preparing his defense from a highsecurity facility, it was defendant's choice to elect to proceed pro se after extensive warningsabout the difficulties of doing so, and he was granted an adjournment to prepare for pretrialhearings and trial. It was defendant's own actions, on the eve of trial, in sending a letter to CountyCourt indicating that he had no intention of proceeding with the trial or representinghimself—which he affirmed at the next appearance at which he arrived without retainedcounsel—that resulted in the court's justifiable decision to reassign his former counsel torepresent him. The right to self-representation is not absolute and may be forfeited (seePeople v McIntyre, 36 NY2d 10, 18 [1974]; People v Wingate, 184 AD3d 738, 738-739 [2020], lvdenied 35 NY3d 1071 [2020]) and, under the circumstances, the court was not required toaccede to defendant's delay tactics and grant a further adjournment to permit him to retaincounsel (see People v Booker, 133AD3d 1326, 1327 [2015], lv denied 27 NY3d 1149 [2016]). Given the foregoing, weare satisfied that defendant's guilty plea was a "knowing, voluntary and intelligent choice amongalternative courses of action" (People vConceicao, 26 NY3d 375, 382 [2015] [citation omitted]; accord People v Thomas, 175 AD3d1614, 1615 [2019], lv denied 34 NY3d 1019 [2019]).
Further, absent record "evidence of innocence, fraud or mistake in the inducement" of theplea, we cannot conclude that County Court abused its discretion in denying defendant's motionto withdraw his plea without a hearing (People v Palmer, 174 AD3d 1118, 1119 [2019] [internal quotationmarks and citations omitted]; accordPeople v Burnell, 183 AD3d 931, 933 [2020], lv denied 35 NY3d 1043 [2020]).Defendant's claim that he was deprived of meaningful representation based upon counsel's advice[*3]concerns matters outside of the record that is more properlyaddressed in a motion pursuant to CPL article 440 (see People v Williams, 184 AD3d 1010, 1013-1014 [2020], lvdenied 35 NY3d 1097 [2020]).
Defendant also argues that County Court erred in denying his pro se motion, and the motionmade by defense counsel, to dismiss the indictment in the interest of justice (see CPL210.40). However, "by pleading guilty, defendant forfeited his right to appellate review ofCounty Court's denial of his motion" (People v Tavares, 273 AD2d 707, 707 [2000],lv denied 95 NY2d 939 [2000]; see People v Arvelo, 16 AD3d 128, 129 [2005], lv denied 4NY3d 883 [2005]; People v Nitzke, 152 AD2d 815, 815 [1989]). In any event, "[a]nindictment should only be dismissed in the interest of justice where there is some compellingfactor, consideration or circumstance clearly demonstrating that conviction or prosecution of thedefendant would constitute or result in injustice" (People v Snowden, 160 AD3d 1054, 1055 [2018] [internalquotation marks and citations omitted]). Defendant's motion was premised, in part, on theexemption from criminal liability for the voluntary surrender of a weapon to designatedauthorities (see Penal Law § 265.20 [a] [1] [f]), which, as a defense thatmay be raised at trial, provided no basis for dismissing the indictment (see People vKohut, 30 NY2d 183, 187 [1972]; see also People v Santana, 7 NY3d 234, 237 [2006]). Likewise, tothe extent that defendant's motion was based upon the claim that the charged crimes were theproduct of coercion (see Penal Law § 40.00 [1]), he forfeited that potentialaffirmative defense by pleading guilty and foregoing a trial at which it could be raised(see Penal Law § 25.00 [2]; People v Bastidas, 67 NY2d 1006, 1007[1986]).
As for defendant's challenge to the denial of his motion to dismiss the indictment based upona claim of duplicity, this is a nonjurisdictional challenge to the indictment that was also waivedby his guilty plea (see People v Vega, 268 AD2d 686, 687 [2000], lv denied 95NY2d 839 [2000]; see also People vGriffin, 173 AD3d 1203, 1205 [2019], lv denied 34 NY3d 981 [2019]; People v Lewis, 138 AD3d 1346,1347-1348 [2016], lv denied 28 NY3d 1073 [2016]). In any event, "[a]n indictment isduplicitous when a single count charges more than one offense" (People v Alonzo, 16 NY3d 267,268-269 [2011]; see CPL 200.30 [1]), and neither count charged more than one offense.Contrary to defendant's claim, the factual reference in the People's response to the bill ofparticulars—to another weapon being found at the fight scene, namely, a "sharpened pieceof metal with a paper handle wrapped in plastic tape"—did not charge another offense orcreate an ambiguity; the indictment clearly only charged defendant with possessing one weapon,i.e., the weapon found on his person, the sharpened toilet brush handle (see CPL 200.95[1]; People v Alonzo, 16 NY3d at 269; People v Keindl, 68 NY2d 410, 416-418[1986[*4]]). Defendant's challenge to the denial of his broadrequest for "investigative, expert or other services" under County Law § 722-c wasforfeited by his guilty plea (see People v Simcox, 219 AD2d 869, 870 [1995]; see generally People v Parilla, 8 NY3d654, 659 [2007]; People v Hansen, 95 NY2d 227, 230-231 [2000]) and, in any event,we cannot conclude that County Court abused its discretion in denying the request, given thatdefendant did not submit any supporting facts to establish the necessity for the request (see People v Walker, 167 AD3d1502, 1503 [2018], lv denied 33 NY3d 955 [2019]; People v Clarke, 110 AD3d 1341,1342-1343 [2013], lv denied 22 NY3d 1197 [2014]). We have examined defendant'sremaining claims and conclude that they do not have merit.
Egan Jr., J.P., Clark, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed.
Footnote *:Although County Court indicatedthat it was amending count 2 of the indictment to charge the reduced crime of attemptedpromoting prison contraband in the first degree, the record does not reflect that the indictmentwas amended (see CPL 200.70). Thus, it appears that defendant pleaded guilty to areduced offense under count 2 (see CPL 1.20 [37]; 220.10 [4] [b]).