| People v Dickerson |
| 2021 NY Slip Op 05895 [198 AD3d 1190] |
| October 28, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Raymond S. Dickerson, Appellant. |
Karen A. Leahy, Cortland, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Clark, J. Appeals (1) from a judgment of the County Court of Broome County(Dooley, J.), rendered June 28, 2018, convicting defendant upon his plea of guilty of thecrime of unlawful manufacture of methamphetamine in the third degree, (2) from ajudgment of said court, rendered October 12, 2018, convicting defendant upon his pleaof guilty of the crime of attempted criminal possession of a controlled substance in thesecond degree, and (3) by permission, from an order of said court, entered July 1, 2020,which denied defendant's motion pursuant to CPL 440.10 to vacate the judgments ofconviction, without a hearing.
In March 2018, defendant pleaded guilty as charged in a one-count indictment(hereinafter the first indictment) to unlawful manufacture of methamphetamine in thethird degree, and executed a written waiver of appeal. Defendant was promised asentence of five years of probation in exchange for his guilty plea and, pendingsentencing, he was released on bail. In May 2018, based upon defendant's conduct andresulting arrest in April 2018, defendant was indicted on the charges of criminalpossession of a controlled substance in the second degree, unlawful manufacture ofmethamphetamine in the second degree, unlawful disposal of methamphetaminelaboratory material and tampering with physical evidence (hereinafter the secondindictment). County Court determined that it was not bound by the plea agreemententered in the first indictment and sentenced defendant, as an acknowledged secondfelony offender, to a prison term of three years, followed by two years of postreleasesupervision.
With regard to the second indictment, County Court issued a decision on defendant'somnibus motion which, among other things, denied his motion to suppress the physicalevidence found in defendant's home upon execution of a search warrant. Followingcertain pretrial hearings, defendant proceeded to trial, at which a State Police investigatortestified to the evidence seized from defendant's residence, including fluid taken from thep-trap in the kitchen sink drain. A forensic scientist who analyzed that fluid testified thatthe fluid contained methamphetamine and had an aggregate weight in excess of twoounces. At the close of the People's proof, defense counsel unsuccessfully moved fordismissal of count 1 of the second indictment charging criminal possession of acontrolled substance in the second degree, arguing that the People had failed to provethat the aggregate weight of the fluid exceeded two ounces because extraneous foreignmatter was also in the p-trap. Defendant thereafter pleaded guilty to the reduced crime ofattempted criminal possession of a controlled substance in the second degree insatisfaction of all charges in the second indictment, and executed a written waiver ofappeal. In accordance with the terms of the plea agreement, defendant was sentenced, asan acknowledged second felony offender, to a prison term of eight years, followed byfive [*2]years of postrelease supervision, to runconcurrently with the sentence imposed under the first indictment.
Defendant thereafter moved to vacate both judgments of conviction pursuant to CPL440.10. As to the first indictment, defendant asserted that his guilty plea was notknowing, voluntary and intelligent and, as to the second indictment, he alleged that hehad been denied the effective assistance of counsel at trial. County Court denied themotion, without a hearing. Defendant appeals from both judgments and, with permission,from the order denying his CPL 440.10 motion.
Defendant contends that his guilty plea to the sole count in the first indictment wasnot knowing, voluntary and intelligent in that the indictment did not specify whatlaboratory equipment and precursors, chemical reagents or solvents he was accused ofpossessing. He relatedly argues that the People's response to his bill of particulars wasinadequate because it failed to provide this information, rendering his plea unknowing.The record reflects that defense counsel requested discovery and a bill of particularsseeking, among other things, this information (see Penal Law§ 220.73 [1]). The People's response contained some of the requestedinformation, but did not specify the items of laboratory equipment or the precursors,chemical reagents or solvents that defendant allegedly possessed. Defendant thereafterfiled an omnibus motion again seeking, among other relief, discovery and an orderdirecting the People to provide a further bill of particulars, arguing that the People hadfailed to substantively answer the first request for a bill of particulars. However,defendant pleaded guilty before the People responded to that motion.
Defendant's primary challenge—to the voluntariness of hisplea—survives his unchallenged waiver of appeal but is unpreserved for ourreview as the record does not reflect that he made a postallocution motion to withdrawhis guilty plea on this ground, despite ample opportunity to do so (see CPL220.60 [3]; People vConceicao, 26 NY3d 375, 381-382 [2015]). Further, the narrow exception to thepreservation requirement was not triggered (see People v Daniels, 193 AD3d 1179, 1180 [2021]; People v Botts, 191 AD3d1044, 1045 [2021], lv denied 36 NY3d 1095 [2021]). Were we to addressthis claim despite the lack of preservation, we would find that defendant elected to pleadguilty in exchange for the promised sentence and to forgo his pending motions and, assuch, made a "knowing, voluntary and intelligent choice among alternative courses ofaction" (People v Conceicao, 26 NY3d at 382 [citation omitted]).
Defendant's further challenge to the sufficiency of the factual allegations in the firstindictment, and to alleged deficiencies in the People's response to his bill of particulars,are nonjurisdictional defects that were waived by his guilty plea and waiver of appeal (see People v Guerrero, 28NY3d 110, 115-[*3]116 [2016]; People v Williams, 189 AD3d1978, 1981 [2020]; Peoplev Seymore, 188 AD3d 1767, 1768 [2020], lv denied 36 NY3d 1100[2021]; People v Contento, 146 AD2d 959, 961 [1989]). Defendant's challenge tothe factual sufficiency of the plea allocution is similarly precluded by the waiver ofappeal (see People vApelles, 185 AD3d 1298, 1299 [2020], lv denied 35 NY3d 1092[2020]). Contrary to defendant's claim, the first indictment specifically cited to PenalLaw § 220.73 (1), charged all of the elements of the crime and alleged actsthat constitute a crime; thus, it was not defective (see People v West, 189 AD3d 1981, 1983 [2020], lvdenied 37 NY3d 975 [2021]; People v Mathis, 185 AD3d 1094, 1096 [2020]).[FN*]
With regard to the second indictment, defendant contends—on direct appealand on appeal from the denial of his motion to vacate—that he was deprived of theeffective assistance of counsel at trial, rendering his subsequent guilty plea not knowing,voluntary and intelligent. First, he faults defense counsel for failing to make a motion tosuppress that portion of the liquid seized from the sink p-trap that contained extraneousforeign material. Additionally, defendant argues that defense counsel should have hadthe liquid independently weighed and tested to determine how much of it was puremethamphetamine for the purpose of demonstrating that the "preparations, compounds,mixtures or substances containing methamphetamine" had an aggregate weight of lessthan two ounces (Penal Law § 220.18 [2]).
The portion of defendant's ineffective assistance of counsel claim premised uponcounsel's trial performance does not implicate the voluntariness of his guilty plea and, assuch, does not survive his unchallenged appeal waiver; moreover, it is unpreserved forour review in the absence of an appropriate postallocution motion (see People v Payson, 189AD3d 1820, 1822 [2020], lv denied 36 NY3d 1099 [2021]; People v Danzy, 182 AD3d920, 921 [2020], lv denied 35 NY3d 1043 [2020]). As for defendant's claimthat defense counsel was ineffective for failing to seek suppression of a portion of theliquid seized from the sink p-trap, such claim survives the unchallenged appeal waiver tothe extent that it implicates the voluntariness of his plea; however, it is unpreserved giventhe absence of an appropriate postallocution motion (see People v Hall, 147 AD3d 1151, 1152 [2017], lvdenied 29 NY3d 1080 [2017]). Defendant expressly declined to move to withdrawhis guilty plea at sentencing, repeatedly indicating that counsel had done a "good job."The narrow exception to the preservation requirement is inapplicable, as County Courtconducted a sufficient further inquiry after defendant made statements inconsistent withhis guilt during the plea allocution; defendant conferred with counsel and thenunqualifiedly admitted his guilt and entered a guilty plea (see People v Pastor, 28 NY3d1089, 1090-1091 [2016]; People v Lopez, 71 NY2d 662, 666 [1988]). The[*4]court made clear to defendant that his plea wouldresult in a waiver of trial-related issues including any challenge to the sufficiency of theevidence regarding the aggregate weight of the methamphetamine. Were we to addressdefendant's ineffective assistance of counsel claims on direct appeal despite the lack ofpreservation, we would find them to be lacking in merit.
As a final matter, the motion to vacate the judgment with regard to the secondindictment was properly denied, without a hearing, as "[t]he moving papers do not allegeany ground constituting [a] legal basis for the motion" (CPL 440.30 [4] [a]).
Garry, P.J., Egan Jr., Lynch and Pritzker, JJ., concur. Ordered that the judgments andorder are affirmed.
Footnote *:As defendant has notraised any specific arguments related to his appeal from the denial of his CPL 440.10motion with regard to the first indictment, we deem the appeal to be abandoned to thatextent (see People v Brown,192 AD3d 1260, 1261 n [2021]).