| People v LaPierre |
| 2021 NY Slip Op 04055 [195 AD3d 1301] |
| June 24, 2021 |
| Appellate Division, Third Department |
[*1](June 24, 2021)
| The People of the State of New York,Respondent, v Mark A. LaPierre, Appellant. |
Kelly M. Monroe, Albany, for appellants, and appellant pro se.
Andrew J. Wylie, District Attorney, Plattsburgh (Jamie Douthat of counsel), forrespondent.
Aarons, J. Appeals (1) from a judgment of the County Court of Clinton County (McGill, J.),rendered March 24, 2015, convicting defendant upon his pleas of guilty of the crimes of criminalsale of a controlled substance in the third degree (two counts) and conspiracy in the fourthdegree, and (2) by permission, from an order of said court (Bruno, J.), entered September 7,2017, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, withouta hearing, and (3) by permission, from an order of said court (Bruno, J.), entered January 3, 2018,which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In satisfaction of a six-count indictment stemming from the sale of heroin on two occasions,defendant pleaded guilty to two counts of criminal sale of a controlled substance in the thirddegree and conspiracy in the fourth degree. As part of the plea agreement, which satisfied allknown, uncharged drug-related crimes, defendant was required to waive his right to appeal. Atsentencing, defendant unsuccessfully orally moved, pro se, to withdraw his guilty plea, raisingmultiple claims, including that he had received ineffective assistance of counsel. County Court(McGill, J.) later denied defendant's written pro se motion to withdraw his plea, in a writtendecision, finding that the guilty plea had been knowing, voluntary and intelligent.[FN1] The court sentenced defendant, asa second felony offender, to the agreed-upon prison terms of 5
Defendant subsequently moved, pro se, to set aside his sentence pursuant to CPL 440.20 and,later, to vacate the judgment of conviction pursuant to CPL 440.10. County Court (Bruno, J.)denied both motions, without a hearing, in written decisions. Defendant appeals from thejudgment of conviction and, by permission, from the orders denying his CPL article 440motions.
Initially, we agree with defendant that his waiver of appeal is not valid. County Court(McGill, J.) failed to adequately advise him that the right to appeal was separate and distinctfrom the rights he was automatically forfeiting by pleading guilty and used overly-broadlanguage regarding the scope of the waiver (see People v Lopez, 6 NY3d 248, 256 [2006]). Although the recordcontains a written waiver apparently executed on the day of the plea allocution, it was overbroadand inaccurate (see People v Bisono,36 NY3d 1013, 1017-1018 [2020]; People v Thomas, 34 NY3d 545, 565-566 [2019]).
To the extent that defendant's challenge to his guilty plea was preserved by his unsuccessfuloral and written motion to withdraw his plea, it lacks merit[*2].[FN2] Contrary to defendant's claim, the recordreflects that, prior to the plea allocution, he was clearly advised of the terms of the pleaagreement, including the counts to which he would be pleading guilty, the sentences to beimposed on each and that a period of PRS would be required, and he agreed to those termsunequivocally. The record also unambiguously reflects that defendant was aware that a prior pleaoffer, which came with a higher aggregate prison sentence, had been renegotiated by defensecounsel and replaced by the current plea offer, which had different terms that were made clear toand accepted by him, including that he would enter a guilty plea to three counts. A review of therecord establishes that defendant, in pleading guilty, made a "knowing, voluntary and intelligentchoice among alternative courses of action" (People v Conceicao, 26 NY3d 375, 382 [2015]). Accordingly, asdefendant unequivocally pleaded guilty and admitted the factual allegations of the crimes, andbecause his litany of claims of coercion, fraud, innocence and mistake are unsupported orcontradicted by the record, County Court did not abuse its discretion in denying his motion towithdraw his plea (see People vHaffiz, 19 NY3d 883, 884-885 [2012]; People v Fiumefreddo, 82 NY2d 536,546-548 [1993]; People v Walker,173 AD3d 1561, 1562 [2019]).
To the extent that defendant argues that County Court erred in refusing to assign substitutecounsel when, at sentencing, he moved to withdraw his guilty plea based in part on complaintsregarding counsel, "he failed to demonstrate good cause for such substitution and we discern noabuse of discretion in the court's inquiry" and denial of the request (People v Blanford, 179 AD3d1388, 1392 [2020], lv denied 35 NY3d 968 [2020]; see People v Porto, 16 NY3d 93,99-100 [2010]). Moreover, defense counsel had no obligation to join defendant's pro se motions(see People v Blanford, 179 AD3d at 1392). Defendant did not, at any point duringsentencing, request to proceed pro se and, instead, asked for permission to submit pro se motionsfollowing sentencing, which the court permitted. In defendant's subsequent written pro se motionto withdraw his guilty plea, he requested to proceed pro se on that motion and, after an inquiry,he was permitted to do so, and his motion to withdraw his plea was denied. Accordingly,defendant's right to proceed pro se was honored, and his request during the pro se inquiry forhybrid representation was properly denied (see People v Rodriguez, 95 NY2d 497,501-502 [2000]).
Defendant further contends that County Court failed to comply with CPL 400.21 (3) by notinquiring if he had received and reviewed a copy of the predicate offender statement. Defendantdid not raise this procedural claim at sentencing and, thus, it is unpreserved for our review (see People v Iorio, 188 AD3d1352, 1354 [2020], lv denied 36 NY3d 1051 [2021]). In any event, defense counselindicated at sentencing that he [*3]provided defendant with acopy of the statement. Although defendant briefly stated that he "would challenge" the predicateconviction and had an opportunity to do so prior to sentencing, he did not controvert anyparticular fact or allegation in the statement, as required, or request a hearing. As defendantpleaded guilty with the understanding that he would be sentenced as a second felony offender,and he does not now dispute that he was, in fact, a second felony offender, we find that there wassubstantial compliance with CPL 400.21 and that defendant was properly adjudicated to be asecond felony offender (see People vTariq, 166 AD3d 1248, 1249 [2018], lv denied 32 NY3d 1178 [2019]; People v Hummel, 127 AD3d1506, 1507 [2015], lv denied 25 NY3d 1202 [2015]).
Defendant also challenges, on several grounds, the denial of his motion to set aside thesentence (see CPL 440.20).[FN3] Although a motion pursuant to CPL 440.20 isthe proper vehicle to challenge a sentence as "unauthorized, illegally imposed or otherwiseinvalid as a matter of law" (CPL 440.20 [1]; see People v Jurgins, 26 NY3d 607, 612 [2015]), County Court(Bruno, J.) correctly determined that defendant had not established any such basis upon which toset aside the sentence. The fines imposed on each drug-sale conviction were part of theagreed-upon disposition and were authorized (see Penal Law §§ 80.00,80.15), and the $300 surcharge and crime victim assistance fee were mandatory (seePenal Law § 60.35 [1] [a] [i]; CPL 420.40 [3]). The court properly declined toconsider the statutory constitutional challenges raised in the motion based upon, among otherdeficiencies, the failure to notify the Attorney General (see CPLR 1012 [b]).[FN4] Defendant's challenge to theamount of the restitution ordered and failure to hold a hearing is unpreserved, as he was aware ofthe amount of restitution to be ordered at the time he entered the guilty plea and did not request ahearing or object to the amount at any point during sentencing (see People v Horne, 97NY2d 404, 414 n 3 [2002]; People vBonfey, 185 AD3d 1091, 1091-1092 [2020]).[FN5] Restitution was authorized to the ClintonCounty District Attorney for the amount of funds expended in the purchase of drugs fromdefendant under the drug-sale counts to which he pleaded guilty, as documented in the victimimpact statement (see Penal Law § 60.27 [9]). We have considereddefendant's other contentions raised in this motion and, as none establishes that the sentence wasunauthorized, illegally imposed or otherwise invalid as a matter of law, we find that the motionwas properly denied without a hearing (see CPL 440.20 [1]; 440.30 [4]).[FN6]
Defendant argues that he was denied the effective assistance of counsel and that CountyCourt erred in denying his motion to withdraw his guilty plea and his motion pursuant to CPL440.10, which both raised this claim. Defendant's many claims regarding counsel's deficiencies,taken together, are largely refuted [*4]by the record on directappeal, are otherwise unsubstantiated by his motion papers and do not support a finding that hewas denied meaningful representation (see People v Taylor, 156 AD3d 86, 92 [2017], lv denied 30NY3d 1120 [2018]). "In the context of a guilty plea, a defendant has been afforded meaningfulrepresentation when he or she receives an advantageous plea and nothing in the record castsdoubt upon the apparent effectiveness of counsel" (People v Pace, 192 AD3d 1274, 1275 [2021] [internal quotationmarks and citations omitted]). Counsel made appropriate pretrial motions, negotiated a favorabledisposition on the separate drug-sale convictions (see Penal Law§§ 70.25 [2]; 70.70 [3] [b] [i]) and ensured that the plea satisfied otheruncharged, drug-related offenses. Contrary to defendant's claim, counsel did not argue againstdiversion but, rather, offered his opinion that, given his extensive criminal record, it was unlikelyto be granted, an opinion also expressed by the People and County Court (McGill, J.). Ultimately,the decision was left to defendant whether to accept the plea or apply for diversion. Defendant'scontention that he was promised another plea offer at an unrecorded meeting in December 2014and provided information in exchange was never mentioned at the plea proceedings and isunsupported by any other evidence, and County Court (Bruno, J.) providently concluded thatthere was no reasonable possibility that it was true (see CPL 440.30 [4] [d]).
Defendant's remaining claims raised in his motion pursuant to CPL 440.10 (1), many ofwhich are based upon matters in the record and are thus reviewable on direct appeal (seeCPL 440.10 [2] [b]), have been reviewed and do not warrant vacating the judgment ofconviction. Defendant's argument that he was denied due process by the preindictment delay andthat counsel's failure to move to dismiss the indictment on this basis constituted ineffectiveassistance of counsel was properly rejected. The drug sales occurred in February and April 2014,an indictment was handed up and unsealed on October 28, 2014 and he was arrested and takeninto custody at his arraignment about a week later, resulting in a delay of approximately eightmonths during which he was not incarcerated. Considering the relevant factors, including thelength of the delay, which was "comparatively brief" (People v Acevedo, 179 AD3d 1397, 1400 [2020]), we agree withCounty Court that the delay was not unreasonable and did not deprive him of due process, and noprejudice was shown (see People v Taranovich, 37 NY2d 442, 445-447 [1975]; People v Ruise, 86 AD3d 722, 723[2011], lv denied 17 NY3d 861 [2011]). The record does not support the claim that "thedelay was part of a deliberate effort to compromise his ability to mount a proper defense at trial"(People v Ebron, 90 AD3d1243, 1246 [2011], lv denied 19 NY3d 863 [2012]). Given the foregoing, counsel'sfailure to include this ground in the motion to dismiss [*5]theindictment would have had little or no chance of success and did not amount to ineffectiveassistance of counsel (see People vCaban, 5 NY3d 143, 152 [2005]; People v Young, 190 AD3d 1087, 1094 [2021], lv denied36 NY3d 1102 [2021]). Defendant's argument, raised for the first time in his postjudgmentmotion, that the statute under which he was convicted (see Penal Law§ 220.39) is unconstitutionally vague in that the definition of sell is overly broad(see Penal Law § 220.00 [1]) has been rejected (see People v Singer,101 AD2d 606, 606 [1984]; see also People v Starling, 85 NY2d 509, 514-516 [1995]).Defendant's remaining claims, including those in his pro se supplemental brief, have beenreviewed and found to be without merit.
Garry, P.J., Lynch, Clark and Colangelo, JJ., concur. Ordered that the judgment and ordersare affirmed.
Footnote 1:Defendant's written motion towithdraw his plea, received by County Court following sentencing, also included a request toproceed pro se on the motions, which the court granted. Contrary to defendant's contention, thecourt did not treat the motion as one made pursuant to CPL article 440.
Footnote 2:Defendant's oral motion towithdraw his guilty plea, made for the first time at sentencing, was not based on a claim that hehad not been advised of the sentence terms and period of PRS (see CPL 220.60 [3]); thatmotion was denied immediately prior to sentencing. Defendant thereafter submitted a pro sewritten motion to withdraw his plea, which County Court denied in a written decision. Given thatthe court expressly ruled on the belated written motion, despite the procedural irregularity, wewill address the issue raised as having been preserved (see CPL 470.05 [2]; People v Wolfe, 103 AD3d 1031,1035 n 1 [2013], lv denied 21 NY3d 1021 [2013]).
Footnote 3:To the extent that defendant'smotion to set aside the sentence primarily challenged his underlying convictions, raisingarguments regarding the validity of his guilty plea and the conduct of defense counsel and theAssistant District Attorney, County Court (Bruno, J.) properly declined to address them in thecontext of this motion (see CPL 440.20 [4]).
Footnote 4:The notification to the AttorneyGeneral included in the record occurred after County Court issued its decision on the CPL 440.20motion.
Footnote 5:The $60 restitution requested inthe victim impact statement for a controlled drug buy that occurred prior to those charged in thisindictment was not imposed in this restitution order.
Footnote 6:Insofar as defendant challengesCounty Court's denial of his motion to reargue the order denying his motion to set aside thesentence, the court's denial is not appealable (see People v Lamont, 144 AD3d 1330, 1331-1332 [2016], lvdenied 28 NY3d 1185 [2017]).