| People v Pace |
| 2010 NY Slip Op 01151 [70 AD3d 1364] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Charles Pace,Appellant. |
—[*1] John H. Crandall, Sr., District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), renderedJanuary 29, 2008. The judgment convicted defendant, upon a jury verdict, of criminal sexual actin the first degree, attempted rape in the first degree and sexual abuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofthree felony offenses, including criminal sexual act in the first degree (Penal Law § 130.50[1]). Defendant had been charged in Town Court with misdemeanor and felony offenses arisingfrom a sexual assault he allegedly committed in the Town of West Winfield, Herkimer County.At arraignment defendant, acting pro se, pleaded guilty to the misdemeanors, and the remainingfelony charges were referred to the grand jury. An indictment thereafter was issued, chargingdefendant with three felonies as well as the three misdemeanors to which he had already pleadedguilty. Defendant pleaded not guilty to the indictment, and the case proceeded to trial.
On the first day of jury selection in County Court, the prosecutor informed the court that hehad learned only recently that defendant had pleaded guilty to the three misdemeanors,whereupon defendant moved to dismiss those counts of the indictment. The court granteddefendant's motion, and defendant then moved to preclude the People from presenting at trial anyevidence relating to the guilty plea. The court granted that motion only in part, ruling that,although the People could not present evidence of the plea on their direct case, they could use theplea for impeachment and rebuttal purposes should defendant testify and deny that he committedthe underlying acts of the misdemeanors. Defendant contends that the court should have grantedhis motion in its entirety and that reversal is required based on the court's failure to do so. Wereject that contention.
"It is well settled that where a defendant's plea is withdrawn, it is out of the case for allpurposes and the People may not use the plea or the contents of the plea allocution on either theirdirect case or for purposes of impeachment" (People v Alt, 50 AD3d 1164, 1165 [2008]; see People vCurdgel, 83 NY2d 862, 864 [1994]). Here, defendant never moved to withdraw his guiltyplea, and thus "the plea and [*2]the resulting conviction. . . are presumptively voluntary, valid and not otherwise subject to collateralattack" and may be used by the People as direct evidence of guilt (People v Latham, 90NY2d 795, 799 [1997]). We therefore conclude that the court's ruling on defendant's motion wasproper.
There is no merit to the further contention of defendant that he was deprived of effectiveassistance of counsel based on defense counsel's failure to move to withdraw the plea or torequest Wade and Huntley hearings. Although defendant was not represented bycounsel when he entered the plea, it does not necessarily follow that the plea was involuntaryand thus subject to vacatur. Indeed, such a determination cannot be made on this record, whichdoes not include a transcript of the plea colloquy (see generally People v Barnes, 56 AD3d 1171 [2008]). Defendanthas thus failed to establish on the record before us that a motion to vacate the plea would havebeen meritorious and that defense counsel was therefore ineffective in failing to make such amotion (see People v Spicola, 61AD3d 1434, 1435 [2009]). In any event, as the People correctly note, defendant gave a fullconfession to the police after his arrest, and forensic tests established that the DNA in semen onthe victim's shirt matched defendant's DNA. Thus, even if defense counsel had successfullymoved to vacate the plea, there nevertheless was overwhelming proof that defendant hadcommitted the misdemeanors to which he pleaded guilty, and it therefore cannot be said that asuccessful motion would have benefitted him.
In addition, defendant was not deprived of effective assistance of counsel based on defensecounsel's failure to request a Wade hearing, inasmuch as there is no indication in therecord that defendant was identified in a pretrial identification arranged by the police. Withrespect to defense counsel's failure to request a Huntley hearing concerning thestatements made by defendant to the police, defendant has not shown that such a motion, ifmade, would have been successful (seePeople v Borcyk, 60 AD3d 1489 [2009], lv denied 12 NY3d 923 [2009]). Wenote, however, that defendant has not contended that defense counsel was ineffective for failingto move for dismissal of the indictment on statutory double jeopardy grounds as a result of theguilty plea in Town Court (see CPL 40.20 [2]). Present—Scudder, P.J., Smith,Fahey and Lindley, JJ.