| People v Drayton |
| 2020 NY Slip Op 07951 [189 AD3d 1888] |
| December 24, 2020 |
| Appellate Division, Third Department |
[*1](December 24, 2020)
| The People of the State of New York,Respondent, v Frank Drayton, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
Meagan K. Galligan, Acting District Attorney, Monticello (Kristin L. Hackett of counsel),for respondent.
Aarons, J. Appeals (1) from a judgment of the Supreme Court (Schick, J.), renderedDecember 21, 2016 in Sullivan County, upon a verdict convicting defendant of the crimes ofrobbery in the second degree (two counts), conspiracy in the fourth degree (two counts), resistingarrest and criminal possession of stolen property in the fifth degree, and (2) by permission, froman order of the County Court of Sullivan County (LaBuda, J.), entered September 11, 2018,which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In 2016, a confidential informant (hereinafter CI) was involved in a controlled buy for thepurchase of drugs and a gun. At the controlled buy, defendant and others threatened the CI if hedid not give them money. Defendant was later apprehended and charged with multiple crimes inconnection with this incident. Prior to trial, defendant moved to suppress certain evidence.Following a hearing, County Court (LaBuda, J.) denied the motion. A Sandoval hearingwas also held, after which the court found that the People could cross-examine defendant, shouldhe testify, about his prior convictions. After a jury trial, defendant was convicted of robbery inthe second degree (two counts), conspiracy in the fourth degree (two counts), resisting arrest andcriminal possession of stolen property in the fifth degree. Defendant thereafter moved to set asidethe verdict under CPL 330.30. Supreme Court (Schick, J.) denied the motion and sentenceddefendant, as a second felony offender, to a term of imprisonment, to be followed by a period ofpostrelease supervision. Defendant then moved to vacate the judgment of conviction under CPL440.10. County Court denied the motion without a hearing. Defendant appeals from the judgmentof conviction and, by permission, from the order denying his CPL article 440 motion.
Defendant asserts that County Court erred in denying his motion tosuppress—specifically, that probable cause was lacking to arrest him.[FN1] "A police officer may conduct awarrantless search of a defendant's person and possessions incident to a lawful arrest" (People v Ruppert, 42 AD3d 817,818 [2007], lv denied 9 NY3d 964 [2007] [citations omitted]). "In the absence of awarrant, a lawful arrest is one that is supported by probable cause" (People v Cruz, 131 AD3d 724,726 [2015] [citations omitted], lv denied 26 NY3d 1087 [2015]; see People v Turner, 178 AD3d70, 75 [2019]). "Probable cause exists when an officer has knowledge of facts andcircumstances sufficient to support a reasonable belief that an offense has been or is beingcommitted" (People v Maldonado, 86 NY2d 631, 635 [1995] [internal quotation marksand citations omitted]).
At the suppression hearing, a detective sergeant with the Sullivan County Sheriff's officetestified that he observed the CI meet with two individuals and then engage in a hand-to-handexchange with one of them. The sergeant further testified that, very shortly [*2]after the exchange took place, he observed a van approach and dropoff two individuals—one of whom was wearing a black hoodie and was subsequentlydetermined to be defendant. The group proceeded out of sight and then the sergeant heard agunshot. Following the gunshot, defendant and another individual got in the van, which droveaway. The CI eventually told the sergeant that he had been robbed by the individuals and that oneof them was wearing a black jacket—information that was relayed to other lawenforcement officials. Based upon testimony at the suppression hearing, the van cut off its lights,ran through stop signs, did not use turn signals and was driving at an unreasonable speed for theneighborhood. The van also did not stop, even though a marked law enforcement vehicle wasfollowing the van with its lights activated. When the van eventually stopped, defendant andanother individual jumped out and ran away. A detective with the Monticello Police Departmentchased defendant, which ended after defendant tripped and fell while running. The detectivesearched defendant and found on him some of the money used in the controlled buy.
In view of the evidence that the CI was threatened by defendant, among others, thedescription of what defendant was wearing, the fact that defendant was seen absconding in a van,which was subsequently observed to be driving erratically, and defendant's flight from the vanwhen it stopped, County Court did not err in finding that probable cause existed for thewarrantless arrest of defendant. Accordingly, the suppression motion was correctly denied (see People v Ormsby, 30 AD3d757, 758 [2006], lv denied 7 NY3d 816 [2006]; People v Virola, 300 AD2d822, 823 [2002], lv denied 99 NY2d 633 [2003]; People v Oliver, 191 AD2d 815,816-817 [1993]; People v Brown, 151 AD2d 199, 204 [1989], lv denied 75 NY2d768 [1989]).
Defendant argues that County Court's Sandoval ruling was erroneous. Defendant,however, failed to object to the court's ruling at the close of the Sandoval hearing. In viewof this, his argument is unpreserved (seePeople v Hawkins, 11 NY3d 484, 494 [2008]; People v Sansone, 163 AD3d 1271, 1272 [2018]; People v Stacconi, 151 AD3d1395, 1397 [2017]).
As to defendant's adjudication as a second felony offender, the People filed a second felonyoffender statement relying on defendant's prior conviction, upon a guilty plea, of two counts ofcriminal sale of a controlled substance in the third degree. Defendant contends that his guilty pleain connection with these crimes was not made knowingly, intelligently and voluntarily. In viewof our determination in People v Drayton (189 AD3d 1892 [2020] [decided herewith]) invaliding the guilty plea and reversing the judgment ofconviction in that case, the matter must be remitted for resentencing.
Regarding the CPL 440.10 motion, County Court denied it on the sole basis that this appealwas pending at the time that defendant moved for [*3]postjudgment relief and that there were sufficient facts appearing onthe record of the appeal to resolve the issues raised in his motion. Indeed, CPL 440.10 (2)(b)—the provision relied upon by the court—states that a court must deny a motionto vacate a judgment of conviction where "[t]he judgment is, at the time of the motion,appealable or pending on appeal, and sufficient facts appear on the record with respect to theground or issue raised upon the motion to permit adequate review thereof upon such an appeal."In his brief, defendant raises two issues with respect to the denial of his CPL 440.10motion—the police officers conducted an impermissible showup and ineffective assistanceof counsel. Because sufficient facts appear in the record of the direct appeal to resolve the issueof whether there was an impermissible showup, the court did not err in denying the motion underCPL 440.10 (2) (b) to that extent (seePeople v Grays, 162 AD3d 1224, 1228 [2018], lv denied 32 NY3d 1111 [2018];People v Bruno, 97 AD3d 986,987 [2012], lv denied 20 NY3d 931 [2012]).
We reach a different conclusion, however, with respect to defendant's ineffective assistanceof counsel contention. This contention centers on the premise that his counsel was ineffective forfailing to investigate a potential alibi defense. Defendant filed an alibi notice claiming that he hadbeen at a restaurant prior to and at the time of the incident at issue. In his CPL 440.10 motion,defendant averred in a supporting affidavit that his counsel failed to interview witnesses at therestaurant and failed to secure surveillance video at the restaurant, as well as video depicting thecrime scene. This issue involves, to an extent, the consideration of matters outside the recordand, therefore, is proper for a CPL 440.10 motion to vacate a judgment of conviction (see People v Taylor, 156 AD3d 86,91-92 [2017], lv denied 30 NY3d 1120 [2018]; People v Griffin, 134 AD3d 1228, 1230 [2015], lv denied27 NY3d 1132 [2016]; People v McDonald, 255 AD2d 688, 688 [1998]). As such, thecourt mistakenly concluded that CPL 440.10 (2) (b) prohibited it from examining defendant'sCPL 440.10 motion to the extent that defendant advanced an ineffective assistance of counselclaim.
Finally, although the parties have briefed the merits of the ineffective assistance of counselissue, County Court did not address them. Rather, as noted, the court solely concluded that it wasbarred from doing so under CPL 440.10 (2) (b). In view of this, the matter must be remitted for adetermination of the merits of the ineffective assistance of counsel claim (see People v Maxwell, 89 AD3d1108, 1110 [2011]; see generally CPL 470.15 [1]; People v Nicholson, 26 NY3d 813,826 [2016]; People v LaFontaine, 92 NY2d 470, 474 [1998]).[FN2] Defendant's remaining contentions have beenconsidered and are unavailing.
Lynch, J.P., Clark, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis modified[*4], on the law, by vacating the sentence imposed;matter remitted to the Supreme Court for resentencing; and, as so modified, affirmed. Orderedthat the order is modified, on the law, by reversing so much thereof as denied defendant's CPL440.10 motion predicated upon a claim of ineffective assistance of counsel; matter remitted tothe County Court of Sullivan County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.
Footnote 1:Defendant asserted this groundas a basis when seeking suppression of the discovered tangible evidence. As such, contrary to thePeople's assertion, defendant's argument is preserved.
Footnote 2:We express no opinion on theviability of the ineffective assistance of counsel claim, whether defendant's motion, to the extentpremised on this claim, should be summarily granted or denied or whether defendant is entitledto a hearing on it.