| People v Huebsch |
| 2021 NY Slip Op 06398 [199 AD3d 1174] |
| November 18, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jason Huebsch, Appellant. |
Erin C. Morigerato, Albany, for appellant.
Meagan K. Galligan, District Attorney, Monticello (Kristin L. Hackett of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered September 12, 2017, convicting defendant upon his plea of guilty of the crime ofburglary in the second degree.
Defendant was charged in a seven-count indictment with three residential burglaries, underan accomplice liability theory, and other related crimes. In satisfaction of all charges, defendantpleaded guilty to burglary in the second degree as charged in the first count of the indictment. Aspart of the plea agreement,[FN1] defendant was required to waive his right toappeal. Consistent with that agreement, defendant was sentenced, as an acknowledged secondfelony offender, to a prison term of 10 years to be followed by five years of postreleasesupervision. Defendant appeals.
We affirm. Initially, as defendant claims and the People concede, our review of the recordreflects that defendant's waiver of appeal is invalid (see People v Thomas, 34 NY3d 545, 565-566 [2019]; People v Lunan, 196 AD3d 969,969-970 [2021]). Defendant further argues that his guilty plea was not knowing, voluntary andintelligent in that County Court, among other things, did not sufficiently advise him of theconstitutional trial-related rights that he was forfeiting by pleading guilty (see Boykin vAlabama, 395 US 238, 243 [1969]), and because his plea was the product of coercion andundue pressure. This challenge is unpreserved because defendant did not make an appropriatepostallocution motion (see People vHoward, 190 AD3d 1108, 1108-1109 [2021]). Contrary to defendant's arguments, "thenarrow exception to the preservation requirement is inapplicable, as defendant did not make anystatements that were inconsistent with his guilt, negated an element of the crime or cast doubtupon the voluntariness of his plea" (People v Danzy, 182 AD3d 920, 921 [2020], lv denied 35NY3d 1043 [2020]). Defendant was charged in count 1 of the indictment with burglary under anacting in concert theory with three others.[FN2] Defendant admitted acting as a lookout outsidethe residence, thereby assisting with the burglary, which established his guilt as an accomplice tothat crime (see People v Strauss,155 AD3d 1317, 1318-1319 [2017], lv denied 31 NY3d 1122 [2018]). Accordingly,defendant's statement during the factual allocution—that he did not enter theresidence—did not negate an element of the crime (see People v Widger, 160 AD3d 1297, 1298 [2018]). Were we toconsider his challenge to the validity of his guilty plea, we would find that defendant wasadvised, more than once, of the consequences of his plea and the trial-related rights that he wasforgoing—including his rights against self-incrimination, to testify, to confront witnessesand to a jury trial—and that the record affirmatively demonstrates that he knowingly andvoluntarily waived those rights (seePeople v Tyrell, 22 NY3d 359, 365 [2013]).[FN3] Moreover, defendant assured the court that hehad sufficient time to confer [*2]with counsel and did not feelpressured to waive his rights, and the record contains no support for his claims that he waspressured or coerced into entering a guilty plea or that he was threatened with a maximumsentence if he went to trial. Furthermore, he was properly advised of the maximum potentialsentences that could be imposed should he be convicted after trial.
Defendant further claims that County Court abused its discretion in eliciting from him awaiver of a potential conflict of interest arising from the disclosure that the trial judge's son, apolice officer, was an investigator in this case.[FN4] However, the record reflects that when theofficer's limited involvement in this investigation was disclosed at the outset of the pleaproceedings, both defendant and defense counsel indicated that they had no objection to the trialjudge presiding over this case and, after defendant was sworn, he reaffirmed that he had noobjection. On these facts, the judge was not statutorily disqualified (see Judiciary Law§ 14), and we find that defendant expressly waived any potential conflict (see People v Clapper, 133 AD3d1037, 1038-1039 [2015], lv denied 27 NY3d 995 [2016]) and discern no bias orabuse of discretion (see People v Moreno, 70 NY2d 403, 405-406 [1987]; People v Regan, 192 AD3d 1393,1394 [2021], lv denied 37 NY3d 959 [2021]; see also People v Glynn, 21 NY3d 614, 618-619 [2013]).
Defendant's contentions that he was denied the effective assistance of counsel primarilyconcern allegations that are outside of the record on appeal, such as what counsel investigated oradvised him, which are more properly raised in a motion pursuant to CPL article 440 (see People v Aponte, 190 AD3d1031, 1033 [2021], lv denied 37 NY3d 953 [2021]; People v Taylor, 156 AD3d 86, 92[2017], lv denied 30 NY3d 1120 [2018]). To the extent that defendant argues thatcounsel's deficiencies are apparent from the transcript of the plea and sentencing proceedings,and rendered his plea involuntary, the record fails to support that claim. Moreover, "[i]n thecontext of a guilty plea, a defendant has been afforded meaningful representation when he or shereceives an advantageous plea and nothing in the record casts doubt upon the apparenteffectiveness of counsel" (People vLaPierre, 195 AD3d 1301, 1306 [2021] [internal quotation marks and citation omitted]).Counsel made appropriate pretrial motions, negotiated a favorable disposition that avoidedconsecutive sentencing for separate residential burglaries (see Penal Law§§ 70.06 [6] [b]; 70.25 [2]) and advocated for leniency based upon relevantmitigating factors. At the plea proceedings, defendant indicated that he was satisfied withcounsel's advice and had adequate time to confer with counsel regarding his rights. Given theforegoing, we find, on the record before us, that defendant received meaningful representation(see People v Benevento, 91 NY2d 708, 712 [1998]).
Finally, the record reflects [*3]that County Court took intoconsideration the mitigating factors relevant to sentencing, including defendant's history ofsubstance abuse and family circumstances and the fact that no one was harmed in the burglaries,which the court weighed against the seriousness of the charges. Under the circumstances, we findno abuse of discretion or extraordinary circumstances warranting a reduction of the sentence inthe interest of justice (see CPL 470.15 [6] [b]; People v Rivera, 195 AD3d 1249, 1249-1250 [2021]). Defendant'sremaining claims similarly lack merit.
Egan Jr., J.P., Lynch, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Although defendant was alsorequired to enter a guilty plea to reduced charges under counts 2 and 3 of the indictment as acondition of his release on bail pending sentencing, those counts were dismissed at sentencing,on the People's motion, based upon defendant's cooperation with the conditions of his release.
Footnote 2:Regarding accessorial liability,as is relevant here, "[w]hen one person engages in conduct which constitutes an offense, anotherperson is criminally liable for such conduct when, acting with the mental culpability required forthe commission thereof, he [or she] . . . intentionally aids such person to engage insuch conduct" (Penal Law § 20.00).
Footnote 3:These rights were alsomemorialized in a written document signed by defendant at the plea proceedings.
Footnote 4:Defense counsel stated that theofficer's involvement in the case with a codefendant did not affect defendant and was notmaterial to any defense to the charges.