| People v McDermott |
| 2010 NY Slip Op 06452 [76 AD3d 790] |
| August 20, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Mark K.McDermott, Appellant. |
—[*1]
Appeal from a resentence of the Herkimer County Court (Patrick L. Kirk, J.), renderedDecember 5, 2008. Defendant was resentenced to a determinate term of incarceration of 15 yearswithout postrelease supervision.
It is hereby ordered that the resentence so appealed from is reversed on the law and thematter is remitted to Herkimer County Court for resentencing in accordance with the followingmemorandum: Defendant appeals from a resentence pursuant to which County Court sentencedhim to a 15-year term of incarceration without postrelease supervision (see generally People v Lard, 71 AD3d1464 [2010], lv denied 14 NY3d 889 [2010]). We conclude that the court erred infailing to undertake any inquiry of defendant to determine whether his waiver of the right tocounsel in connection with the resentence was knowingly, voluntarily and intelligently entered(see People v Arroyo, 98 NY2d 101, 103 [2002]; cf. People v Torpey, 258 AD2d972 [1999], lv dismissed 93 NY2d 903 [1999], lv denied upon reconsideration93 NY2d 1006 [1999]; People v Jewell, 151 AD2d 607 [1989]). We thereforereverse the resentence and remit the matter to County Court for resentencing, at which timedefendant shall be advised of his right to counsel and, if defendant chooses to waive that right,the court must undertake a "searching inquiry" to determine whether defendant's waiver isknowing, voluntary and intelligent (Arroyo, 98 NY2d at 103 [internal quotation marksomitted]). The contention of defendant in his pro se supplemental brief that he was deniedeffective assistance of counsel because defense counsel signed the waivers of indictment andspeedy trial is based on documents dehors the record on appeal and must therefore be raised byway of a motion pursuant to CPL article 440 (see People v Dorn, 71 AD3d 1523 [2010]). Nevertheless, we noteour concern with the fact that defense counsel, rather than defendant, signed those waivers. Theremaining contentions of defendant are not properly before us inasmuch as they concern theproceedings underlying the original judgment of conviction rather than the resentence (see generally People v Lawlor, 49AD3d 1270 [2008], lv denied 10 NY3d 936 [2008]).
All concur except Martoche, J.P., and Carni, J., who dissent and vote to dismiss the appeal inthe following memorandum.
Martoche, J.P., and Carni, J. (dissenting). We respectfully dissent. Contrary to the majority'scharacterization of the document on appeal, we conclude that this is not an appeal from aresentence. Rather, in our view, defendant is appealing from an order that denied in part his[*2]motion made pursuant to CPL 440.20. Thus, defendant wouldbe required to seek leave to appeal pursuant to CPL 450.15 (2), which defendant did not do here.We decline to treat this appeal as a request for leave to appeal and conclude that, for the reasonsstated herein, we would dismiss the appeal.
A description of the background of this appeal is necessary to determine the propercharacterization of the document on appeal. In 2003, defendant entered two guilty pleas forburglary in the second degree, in Herkimer County and Oneida County, respectively. The pleaswere entered in satisfaction of unrelated charges in each county, but based on the negotiationsbetween the prosecutors in both counties and defendant, and with the permission of therespective County Courts, the sentences imposed were directed to run concurrently with respectto each other. According to the terms of the plea agreement with respect to both pleas, OneidaCounty Court would sentence defendant to a determinate term of incarceration of 15 years and aperiod of five years of postrelease supervision (PRS), and Herkimer County Court wouldsentence defendant to a determinate term of incarceration of "[f]ifteen years flat." Indeed,Herkimer County Court informed defendant on several occasions during the plea proceeding thathe would receive a determinate term of incarceration of 15 years "flat," and defendant agreed towaive his right to appeal. At sentencing in Herkimer County, defendant was sentenced to 15years and was ordered to pay restitution in the amount of $1,144.32. Defendant acknowledgedthat restitution was being imposed as part of the sentence and that a judgment in that amountwould be entered against him. Herkimer County Court did not mention a period of PRS.
Defendant did not perfect his appeal from the judgment of Herkimer County Court, and in2005 we denied the motion of defendant to extend his time to perfect his appeal from thatjudgment. Defendant then made a CPL article 440 motion, contending that he was not notified ofthe period of PRS or that restitution was being imposed. The motion was denied, and inNovember 2005 defendant sought leave to appeal from the order denying that motion. We denieddefendant's request for leave to appeal. Thus, defendant has had the opportunity on twooccasions to raise the restitution issue before this Court, and on both occasions we have refusedto consider that issue, by denying his motion to extend the time in which to perfect his appealfrom the judgment of Herkimer County Court and by denying his request for leave to appealfrom the order denying his CPL article 440 motion. Additionally, although the waiver bydefendant of his right to appeal does not encompass his challenge to the restitution orderedbecause there is no indication in the record before us that restitution was included in the terms ofthe plea agreement, defendant's challenge to the restitution ordered was not preserved for ourreview because at sentencing defendant did not request a hearing on restitution or object to theamount ordered (see People v JorgeN.T., 70 AD3d 1456 [2010], lv denied 14 NY3d 889 [2010]). This Court wouldhave had the power to review such a challenge as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]), but such a challenge would not have come before this Court asa matter of law.
After we denied defendant's request for leave to appeal from the order denying the CPLarticle 440 motion, which challenged both the period of PRS and the imposition of restitution,defendant moved pro se in Herkimer County Court (hereafter, County Court) seeking to vacatehis sentence under CPL 440.20. Included in his motion papers was a form entitled "Waiver ofCounsel," which set forth that defendant waived and rejected any assigned counsel with respectto any proceedings or hearings to be conducted in connection with his CPL 440.20 motion andthat he was "fully aware of his right to have an attorney present, on his behalf, during anyproceedings related to this matter, and [did] knowingly, voluntarily, and intelligently, reject anyassigned counsel." County Court indicated that it accepted the executed waiver of counsel andadvised defendant that "in the event you wish counsel, please advise the Court immediately."County Court, with the consent of the prosecutor, granted defendant's motion only in part,ordering that there would be no period of PRS to be served upon defendant's release from jail,[*3]based on the mandate of People v Catu (4 NY3d 242 [2005]). Thus, because County Courtgranted that part of defendant's CPL 440.20 motion with respect to PRS and denied that part ofthe motion with respect to restitution, a new certificate of conviction was required to be entered,reflecting that defendant was now receiving a lesser sentence than the sentence originallyimposed, namely, a sentence that did not include PRS.
We note that the document from which defendant appeals is entitled "record of conviction."It is signed by a senior court office assistant and sets forth that defendant was sentenced onFebruary 10, 2003 to 15 years in state prison and was ordered to pay $1,144.32 in restitution.The majority views the appeal to be one from a resentencing. We note, however, that CPL440.20 is available to set aside a sentence "upon the ground that it was unauthorized, illegallyimposed or otherwise invalid as a matter of law" (CPL 440.20 [1] [emphasis added]).The statute further provides that such a motion must be denied if "the ground or issue raisedthereupon was previously determined on the merits upon an appeal from the judgment orsentence, unless since the time of such appellate determination there has been a retroactivelyeffective change in the law controlling such issue" (CPL 440.20 [2]). With respect to the PRScomponent of defendant's sentence, that is precisely the scenario here. Catu was decidedsubsequent to the imposition of defendant's original sentence, and thus defendant was legallyentitled to be resentenced without the PRS component of the original sentence. With respect tothe restitution portion of the sentence, however, defendant had no legal right to relief from theimposition of that component of the sentence and, as previously noted, had an opportunity toconvince this Court to consider the issue of restitution as a matter of discretion in the interest ofjustice on two previous occasions. Thus, because this is not in our view an appeal from aresentence but, rather, this is an appeal from an order denying in part defendant's motionpursuant to CPL 440.20, we do not believe that an appeal lies as of right, and we would declineto grant defendant leave to appeal based on the papers before us and therefore would dismiss theappeal (see CPL 450.15 [2]).
We also note, without further comment, that the Herkimer County judgment originallyentered, ordering defendant to pay restitution, has been fully satisfied, and that an order has beenentered discharging the judgment.
Under the scenario presented here, we believe that the majority's decision extends the rightto counsel well beyond previously enunciated legal parameters. While we have no dispute withthe majority's discussion of the requirement that a court ascertain whether a defendant has madea knowing, voluntary and intelligent waiver of his right to counsel before allowing the defendantto proceed pro se, we note that the cases cited by the majority all involve a defendant's right tocounsel up to the time of conviction. The United States Supreme Court has stated that there is no"constitutional right to counsel when mounting collateral attacks upon . . .convictions" and that the right to appointed counsel extends only to the first appeal as of right(Pennsylvania v Finley, 481 US 551, 555 [1987]). Thus, under CPL article 440, "there isno provision for an absolute right to counsel, absent a factual hearing, . . . [anda]ssignment of counsel other than for an evidentiary hearing is discretionary in . . .article 440 proceedings" (People ex rel. Anderson v Warden, N.Y. City Correctional Inst. forMen, 68 Misc 2d 463, 470 [1971]; see People v Lopez, 14 Misc 3d 1223[A], 2006NY Slip Op 52547[U], *10-11 [2006]). Judiciary Law § 35 (1) (a) and (b) authorizeappointment of counsel for writs of habeas corpus and appeals, not for CPL article 440 motions,and County Law § 722 (4) provides that counsel may be appointed on a CPL article 440motion "when a hearing has been ordered." Given the clear mandate of Catu, there wasof course no hearing here, and thus defendant had no right to counsel. Assuming that themajority is incorrect in characterizing this as an appeal from a resentence rather than as an appealfrom an order denying a pro se CPL article 440 motion, we conclude that the ultimate result ofthe majority's decision is that counsel would be required to be appointed upon the filing of everysuch motion. We do not believe that this Court should so extend the law. Present—Martoche, J.P., Fahey, Carni, Sconiers and Green, JJ.