| People v Fish |
| 2022 NY Slip Op 05354 [208 AD3d 1546] |
| September 29, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Lamont T. Fish, Appellant. |
Christian J. Root, Vestal, for appellant.
Matthew Van Houten, District Attorney, Ithaca (Emily Perks Quinlan of counsel), forrespondent.
Fisher, J. Appeals (1) from a judgment of the County Court of Tompkins County(John C. Rowley, J.), rendered December 21, 2018, convicting defendant upon his pleaof guilty of the crime of burglary in the first degree, and (2) by permission, from an orderof said court, entered August 7, 2020, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, without a hearing.
Defendant broke a window and forcibly entered the victim's home with a shotgun,hid in a bedroom closet waiting hours for her to return home and, when the victimreturned home with her father, defendant burst from the closet and attacked the victim'sfather, who was able to wrestle the gun from him. Defendant then pulled a knife out andattempted to stab the father but defendant was disarmed, subdued and the police weresummoned. As a result, defendant was charged in a six-count indictment with burglary inthe first degree and other crimes. In satisfaction of all charges, defendant accepted a pleaagreement that provided that he would enter a guilty plea to the first count of theindictment charging him with burglary in the first degree, and sentencing would becapped at eight years in prison to be followed by a period of postrelease supervision ofbetween 2
We affirm. Initially, we agree with defendant's contention that his waiver of the rightto appeal is invalid in that it purported to waive legal issues that are nonwaivable. To thatend, he was incorrectly advised during the allocution, in overly broad language, that, as aconsequence of the appeal waiver, "you will not be able to successfully challenge anyaspect of this case" and that he "would have to live with" whatever sentence wasimposed, and was never advised that certain issues survive the appeal waiver (see People v Thomas, 34 NY3d545, 566-567 [2019]; People v Monk, 189 AD3d 1970, 1971 [3d Dept 2020],lv denied 37 NY3d 958 [2021]). The written waiver of appeal, signed bydefendant under circumstances not reflected in the record, compounded this error (see People v David, 200 AD3d1394, 1394 [3d Dept 2021]).[FN*]
To the extent that defendant challenges his guilty plea as not knowing, voluntary andintelligent, this claim is not preserved for our review given his failure to make anappropriate postallocution motion to withdraw his plea despite ample time in which to doso (see CPL 220.[*2]60 [3]; People v Stuber, 205 AD3d1147, 1148 [3d Dept 2022], lv denied 38 NY3d 1136 [2022]). Moreover,defendant does not claim that the exception to the preservation requirement was triggered(see People v Pastor, 28NY3d 1089, 1090-1091 [2016]; People v Lopez, 71 NY2d 662, 666 [1988]).Given that defendant's appeal waiver is unenforceable, he is not precluded fromchallenging the sentence as harsh and excessive (see People v Lopez, 6 NY3d 248, 255-256 [2006]; People v Duckett, 205 AD3d1229, 1229 [3d Dept 2022]). However, upon review, we are not persuaded that thesentence, which was significantly less than the maximum authorized sentence of 25 yearsfor this violent felony (see Penal Law § 70.02 [3] [b]) and satisfiednumerous other charges, is harsh or excessive. Although defendant has only a minimalcriminal history, his claim that he went to the victim's home solely to collect hisbelongings and fell asleep was discredited and is entirely inconsistent with the evidencestrongly supporting the conclusion that he intended to harm the victim or worse, and wasonly thwarted due to the unexpected presence and protective actions of her father.
Defendant's mixed claims of ineffective assistance of counsel are grounded uponmatters appearing both on the record and outside the record and, therefore, they areassessed together, in totality, to determine whether he was deprived of meaningfulrepresentation (see People vCummings, 16 NY3d 784, 785 [2011], cert denied 565 US 862 [2011];People v Taylor, 156 AD3d86, 91-92 [3d Dept 2017], lv denied 30 NY3d 1120 [2018]). Defendant'smotion to vacate is supported solely by his own conclusory affidavit and that of hisattorney on the motion, and no affidavit is submitted from trial counsel. "The failure toinclude an affirmation from counsel, or an explanation for the failure to do so, has beenheld to warrant the summary denial of a defendant's postconviction motion" (People v Wright, 27 NY3d516, 522 [2016] [citations omitted]). Furthermore, "[i]n the context of a guilty plea,a defendant has been afforded meaningful representation when he or she receives anadvantageous plea and nothing in the record casts doubt upon the apparent effectivenessof counsel" (People vAgueda, 202 AD3d 1153, 1156 [3d Dept 2022] [internal quotation marks andcitation omitted], lv denied 38 NY3d 1031 [2022]). With regard to defendant'sclaim that counsel was ineffective for not filing pretrial motions, he failed to establishthat counsel lacked a legitimate or strategic reason for forgoing such motions, namely,negotiating a very favorable plea agreement in the face of strong evidence of guilt andlengthy sentencing exposure (see People v Wright, 25 NY3d 769, 779 [2015]).
Further, the failure to request pretrial hearings does not establish ineffectiveness"particularly in the absence of any basis upon which to conclude that a defendant had acolorable claim" (People v Agueda, 202 AD3d at 1155 [internal quotation marksand [*3]citation omitted]). Defendant's various largelyunsupported allegations—including that counsel failed to investigate the chargesor a potential intoxication defense, to move to withdraw his guilty plea as he purportedlyrequested, to make pretrial motions, to meet with him for sufficient time to discuss theplea offers or to secure his testimony before the grand jury upon his request—areall matters that could have been but were not raised before County Court, prior tosentencing, which would have created a record for direct appeal (see id.). Assuch, the court's summary denial of the motion on these grounds was appropriate(see CPL 440.10 [3] [a]). Moreover, the record reflects that, in advance of theplea proceedings, defense counsel procured a report that documented defendant'salcoholism, the court advised him about the intoxication defense—whichdefendant expressly waived—and counsel emphasized defendant's addiction inasking for sentencing leniency. Defendant also assured the court that he had sufficienttime to discuss his legal options with counsel and was satisfied with counsel's effortsprior to pleading guilty. Given the foregoing, we discern no abuse of discretion inCounty Court's summary denial of defendant's motion (see People v Wright, 27NY3d at 520).
Lynch, J.P., Aarons, Reynolds Fitzgerald and McShan, JJ., concur. Ordered that thejudgment and order are affirmed.
Footnote *:Likewise, the pleamemorandum signed by defendant and provided to him purported to impermissiblywaive the right to bring any postjudgment motions (see People v Thomas, 34NY3d at 554, 566).