| People v Kimball |
| 2023 NY Slip Op 00694 [213 AD3d 1028] |
| February 9, 2023 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Karl W. Kimball, Appellant. |
Rural Law Center of New York, Inc., Castleton (Kristin A. Bluvas of counsel), forappellant.
Clea Weiss, Special Prosecutor, Ithaca, for respondent.
Reynolds Fitzgerald, J. Appeals (1) from a judgment of the County Court of SaratogaCounty (James A. Murphy III, J.), rendered May 29, 2019, convicting defendant upon hisplea of guilty of the crime of attempted sexual abuse in the first degree, and (2) bypermission, from an order of said court, entered October 14, 2021, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
Defendant was charged by felony complaint with sexual abuse in the first degreebased upon conduct involving a child who was less than 11 years old. Following thefiling of various pro se motions and the assignment of counsel, defendant, who had aprior felony sex conviction, waived indictment and agreed to be prosecuted pursuant to asuperior court information charging him with one count of attempted sexual abuse in thefirst degree with the understanding that he would be sentenced to a prison term of fouryears followed by a period of postrelease supervision ranging from 5 to 15 years. Theplea agreement also required defendant to waive his right to appeal. Defendant pleadedguilty in conformity with the plea agreement, and County Court thereafter sentenceddefendant to a prison term of four years followed by 15 years of postrelease supervision.Two years later, defendant moved pursuant to CPL 440.10 to vacate the judgment ofconviction contending that his plea was involuntary and that he had been denied his rightto a speedy trial and to the effective assistance of counsel. The People opposed themotion, and, by order entered October 14, 2021, County Court denied the motion withouta hearing. Defendant appeals from the judgment of conviction and, by permission, fromthe order denying his postconviction motion.
Preliminarily, the People concede—and our review of the recordconfirms—that defendant's waiver of the right to appeal is invalid. Accordingly,defendant's challenge to the perceived severity of his sentence is not precluded (see People v Smith, 208 AD3d1538, 1539 [3d Dept 2022). That said, upon due consideration of all of the relevantfactors (see e.g. People vQuick, 207 AD3d 954, 955 [3d Dept 2022]), including the nature of theunderlying conduct, we do not find the sentence imposed to be unduly harsh or severe(see CPL 470.15 [6] [b]). Contrary to defendant's assertion, the mere fact thatother defendants convicted of the same or similar crimes received lesser terms ofimprisonment or periods of postrelease supervision "is of no moment, as no twodefendants are quite alike even if they have committed, in legal definition, identicaloffenses" (People v Manley,70 AD3d 1125, 1125 [3d Dept 2010] [internal quotation marks and citationomitted]).
Defendant next contends that his plea was involuntary because County Court failedto properly apprise him of his Boykin rights and, further, provided inconsistentinformation regarding defendant's sentencing exposure. Inasmuch as defendant did notmove to withdraw his plea despite an [*2]opportunity todo so, such issues are unpreserved for our review (see People v Podeswa, 205 AD3d 1139, 1140 [3d Dept2022], lv denied 38 NY3d 1135 [2022]; People v Lumpkin, 201 AD3d 1257, 1257 [3d Dept 2022]).The narrow exception to the preservation requirement was not triggered as defendant didnot make any statements during the plea colloquy that negated an element of the chargedcrime, were inconsistent with his guilt or otherwise called into question the voluntarinessof his plea (see People vNichols, 194 AD3d 1114, 1115 [3d Dept 2021], lv denied 37 NY3d 973[2021]). In any event, although County Court did not expressly advise defendant that hewould be giving up his right against self-incrimination, "[a] plea need not be invalidatedsimply because the trial judge failed to enumerate all the constitutional rights beingwaived by a guilty plea" (Peoplev Crampton, 201 AD3d 1020, 1023 [3d Dept 2022] [internal quotation marksand citation omitted], lv denied 37 NY3d 1160 [2022]; see People vNichols, 194 AD3d at 1115), and defendant's sentencing exposure, including therange encompassing the period of postrelease supervision that could be imposed, wasaccurately set forth at the outset of the plea colloquy (compare People vLumpkin, 201 AD3d at 1257-1258).
Defendant also challenges the voluntariness of his plea based upon the ineffectiveassistance of counsel—specifically, counsel's failure to properly investigate and/oradvise him of a potential intoxication defense. As defendant's ineffective assistance ofcounsel claim is premised upon both record-based and nonrecord-based allegations, it isproperly reviewed in its entirety in the context of defendant's appeal from the denial ofhis CPL 440.10 motion (seePeople v Fish, 208 AD3d 1546, 1548 [3d Dept 2022]; People v Goodwalt, 205 AD3d1070, 1073 [3d Dept 2022], lv denied 38 NY3d 1071 [2022]). In this regard,although defendant indeed moved to vacate the judgment of conviction based upon,among other things, the ineffective assistance of counsel, counsel's affirmation in supportthereof makes only a general reference to trial counsel's failure to explore defendant's"options" or "discuss a defense strategy" with defendant. To the extent that defendant'saccompanying affidavit elaborated upon this claim, defendant chastised counsel forfailing to investigate a potential alibi defense and/or the complaining witnesses' motivesto lie. Noticeably absent from defendant's CPL 440.10 motion is any mention of apotential intoxication defense or any suggestion that he lacked the requisite intent tocommit the subject crime. As defendant did not move to vacate the judgment ofconviction upon this ground, we find this argument to be unpreserved for our review (see generally People v Stuber,205 AD3d 1147, 1149 [3d Dept 2022], lv denied 38 NY3d 1136 [2022]; People v English, 100 AD3d1147, 1148 [3d Dept 2012]; People v Campbell, 81 AD3d 1184, 1185 [3d Dept2011]).[FN*]
Were we to conclude otherwise, we [*3]nonethelesswould find that County Court properly denied defendant's postconviction motion withouta hearing. In the context of arguing for leniency at sentencing, defense counsel suggestedthat defendant was "not of a clear mind" at the time of the offense, and defendant,although accepting responsibility for his conduct, contended during the course of hispresentence investigation interview that "he had no recollection of touching [the child]."As evidenced by the foregoing, it is readily apparent that the viability of the assertedintoxication defense "could with due diligence by . . . defendant havereadily been made to appear on the record in a manner providing adequate basis forreview of such . . . issue upon an appeal from the judgment" of conviction(CPL 440.10 [3] [a]; see People v Fish, 208 AD3d at 1549). In any event, absentany basis—other than defendant's belated, self-serving claim—upon whichto conclude that defendant had a colorable intoxication defense, counsel's failure topursue such a defense does not rise to the level of ineffectiveness (see People vFish, 208 AD3d at 1549; People v Agueda, 202 AD3d 1153, 1155 [3d Dept 2022],lv denied 38 NY3d 1031 [2022]). Defendant's remaining arguments, to the extentnot specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Lynch, Aarons and Fisher, JJ., concur. Ordered that the judgment and theorder are affirmed.
Footnote *:As defendant has notbriefed the remaining grounds advanced in his postconviction motion, we deem sucharguments to be abandoned (seePeople v Phillip, 200 AD3d 1108, 1111 [3d Dept 2021]).