| People v Stevens |
| 2009 NY Slip Op 05919 [64 AD3d 1051] |
| July 23, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James A.Stevens, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello, for respondent.
Garry, J. Appeals (1) from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered October 23, 2007, convicting defendant upon his plea of guilty of the crimes of rape inthe first degree (four counts), sodomy in the first degree (four counts), course of sexual conductagainst a child in the first degree (two counts), and predatory sexual assault against a child, (2)from a judgment of said court, rendered January 3, 2008, resentencing defendant following hisconviction of the crime of course of sexual conduct against a child in the first degree, and (3) bypermission, from an order of said court, entered July 7, 2008, which denied defendant's motionpursuant to CPL 440.20 to set aside the sentences.
In March 2007, defendant was interviewed by law enforcement officers in connection withan alleged course of sexual abuse of a teenaged victim occurring over the period of three years,from 2000 through 2003, and a course of sexual abuse of a second, younger teenaged victimoccurring over the period of the three subsequent years from 2004 through 2007. Defendantconfessed to engaging in sexual conduct with both victims in an audiotaped and writtenstatement. Initially, he waived indictment and allegedly decided to accept a plea proposalnegotiated by his attorney that included a 15-year sentencing agreement. However, afterconsulting with a second attorney, defendant rejected the plea proposal and subsequentlyretained the second attorney.[*2]
In May 2007, defendant was indicted on 142 counts ofcrimes relating to the first victim and, shortly thereafter, on 10 counts of crimes relating to thesecond victim. Defendant ultimately pleaded guilty upon the first indictment to four counts ofrape in the first degree and four counts of sodomy in the first degree and, upon the secondindictment, to two counts of course of sexual conduct against a child in the first degree and onecount of predatory sexual assault against a child. During his plea allocution, defendant waivedthe right to appeal and also signed a written waiver subscribed by both him and his counsel. Hewas sentenced to a prison term of 25 years on each count, to run concurrently, with five years ofpostrelease supervision on the first 10 counts and postrelease supervision for life on the finalcharge of predatory sexual assault against a child. In the resentencing proceeding, the predatorysexual assault conviction was reduced to course of sexual conduct against a child in the firstdegree, and he was sentenced to 25 years, to run concurrently with the existing sentences.Defendant then moved pursuant to CPL article 440 alleging ineffective assistance of counsel,which County Court denied upon the parties' submissions without a hearing. He now appealsfrom the judgments of conviction and, by permission, from the order denying the CPL article440 motion.
Defendant does not contest the validity of his waiver of the right to appeal, concentratinginstead on County Court's denial of his CPL article 440 motion. The People contend that thewaiver of the right to appeal bars consideration of his claims because, in their view, defendant'swaiver included the right to make postconviction motions. This argument was not raised beforeCounty Court. Further, the record does not show that defendant was advised that his waiver ofthe right to appeal included postconviction remedies or that such a waiver was contemplated bythe People or the court. Instead, at sentencing, County Court directly advised defendant that hecould make a CPL article 440 motion after sentencing, and the People concurred. We thereforedecline to find that defendant waived the right to make postconviction motions (cf. People v Morton, 56 AD3d1054, 1055 [2008], lv denied 12 NY3d 761 [2009]; People v Evans, 27 AD3d 905,905-906 [2006], lv denied 6 NY3d 847 [2006]).
Defendant did not state which specific provision of CPL article 440 he was proceedingunder, but sought to be resentenced to 15 years. This request is based upon the allegation that hereceived ineffective assistance of counsel in that his second attorney advised him to reject theinitial plea offer as he could "beat this case" by engaging in a course of conduct to bribe the twoyoung witnesses so as to prevent them from testifying. County Court treated the motion as one tovacate the sentence and denied the motion without a hearing on two grounds. The court found,first, that defendant had not sufficiently supported his claim with affidavits from persons withknowledge, other than his own self-serving affidavit and an affidavit of his motion counselcontaining hearsay allegations[FN*](see CPL 440.30 [4] [d]; Peoplev Woodard, 23 AD3d 771, 772[*3][2005], lvdenied 6 NY3d 782 [2006]). The court further found that defendant had no basis for a claimof ineffective assistance arising out of his rejection of the initial plea offer because he was stillrepresented by his first attorney when he did so, and he did not retain the attorney whoserepresentation was allegedly ineffective until after the initial offer had been rejected andwithdrawn (see CPL 440.30 [4] [a]).
Defendant's application is wholly without merit. In effect, he seeks to reinstate the initialplea offer. He is not entitled to that relief. Specific performance of the previous offer isunavailable because it was never placed upon the record or approved by County Court (seePeople v Huertas, 85 NY2d 898 [1995]; People v Scialdone, 228 AD2d 807, 808[1996], lv denied 89 NY2d 929 [1996]). Having rejected the initial plea, he cannotdemonstrate any reliance thereon (see People v Anderson, 270 AD2d 509, 510-511[2000], lv denied 95 NY2d 792 [2000]; People v Hamilton, 192 AD2d 738, 740[1993]; People v Simmons, 190 AD2d 911, 912 [1993]). Finally, as defendant admits tobeing fully complicit in an alleged illegal scheme, he is clearly not entitled to specificperformance of the initial plea agreement "as a matter of essential fairness" (People vMcConnell, 49 NY2d 340, 349 [1980]; see People v Augustine, 265 AD2d 671, 672[1999]). The record reveals that defendant was fully and properly apprised of his legal positionby his first counsel, who had negotiated the favorable proposal on his behalf and who was stillhis counsel of record when he rejected it. Defendant's choice to reject this advice and insteadengage in an obviously wrongful course of conduct cannot be rewarded. Though he alleges thathis second attorney led him into this misconduct, no legal education was required to understandthat bribing these two young victims in an effort to avoid their testimony was criminal conductdirectly designed to undermine the legal process. His admitted participation in this scheme barsthe requested relief, and County Court properly denied his motion.
Finally, the claim for coram nobis relief is denied. The issues that defendant raises wereaddressed within the context of the CPL article 440 application, and the alleged inadequaterepresentation did not take place at the appellate level (see People v Bachert, 69 NY2d593, 599-600 [1987]).
Cardona, P.J., Rose and McCarthy, JJ., concur. Ordered that the judgments and order areaffirmed.
Footnote *: Defendant was not required toprovide an affidavit from the attorney whose representation was alleged to be ineffective (seePeople v Radcliffe, 298 AD2d 533, 534 [2002]), but he neither provided affidavits fromwitnesses who allegedly could have substantiated some of his claims, such as his son, his wife,and an attorney who allegedly overheard incriminating information, nor explained his failure todo so. He argues that the evidence was nonetheless sufficient to require a hearing because someof his allegations were supported, in part, by certain statements in the People's opposition to hismotion. No hearing was required on this basis in view of County Court's second finding thateven if defendant's allegations were true, they would not give rise to a claim of ineffectiveassistance of counsel.