| People v Campbell |
| 2013 NY Slip Op 03233 [106 AD3d 1507] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vShawn M. Campbell, Appellant. |
—[*1] Brooks T. Baker, District Attorney, Bath, for respondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Steuben County Court (Joseph W.Latham, J.), entered July 1, 2008. The appeal was held by this Court by order enteredFebruary 10, 2011, decision was reserved and the matter was remitted to Steuben CountyCourt, for further proceedings (81 AD3d 1251 [2011]). The proceedings were held andcompleted.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: We previously held this case and remitted the matter to County Courtfor a hearing on defendant's motion pursuant to CPL 440.10 to vacate the judgmentconvicting him upon his plea of guilty on the seventh day of trial of, inter alia, twocounts of murder in the second degree under Penal Law § 125.25 (1) and (3)(People v Campbell, 81 AD3d 1251 [2011]). Defendant contended that he wasdenied effective assistance of counsel by both trial counsel and the attorney whorepresented him on his motion to withdraw the plea (motion counsel). We directed thecourt on remittal to conduct a hearing to determine whether defendant's trial counselknew of potentially exculpatory evidence, i.e., letters from an inmate to the DistrictAttorney alleging that he had information about the crime, and whether trial counselrelated the contents of those letters to defendant. Motion counsel admitted that he did notsee the letters in defendant's file and did not use that information as a basis to support themotion to withdraw the plea.
Following the hearing, the court credited the testimony of trial counsel that theprosecutor had provided him with copies of the letters, that he discussed the letters withdefendant on three occasions, and that he and defendant determined that they had noexculpatory value. The court also credited the prosecutor's testimony that the subject ofthe letters was raised by defendant in a conference during jury selection between theprosecutor, defendant and trial counsel. The prosecutor testified that trial counsel statedto defendant during the conference, which was requested by defendant, that they bothknew that the letters were "bulls—t." The prosecutor further testified that theauthor of the letters refused to speak with law enforcement officials without the promiseof a benefit. The court refused to credit defendant's testimony that he did not know aboutthe letters until after he was sentenced, when his file was provided to him by motioncounsel. We will not disturb the court's determination that defendant knew about theletters before he pleaded guilty, which is supported by the record and is entitled todeference (see [*2]People v Lard, 71 AD3d 1468, 1469 [2010], lvdenied 14 NY3d 885 [2010], reconsideration denied 15 NY3d 771 [2010];People v Smith, 16 AD3d1081, 1082 [2005], lv denied 4 NY3d 891 [2005]).
Based upon the evidence adduced at the hearing and the court's credibilitydeterminations, we conclude that defendant was not denied effective assistance ofcounsel either by trial counsel or by motion counsel. Defendant failed to establish thattrial counsel's failure to conduct a further investigation into the reliability of theinformation contained in the letters or to use the letters in his defense lacked a strategicbasis (see People v Benevento, 91 NY2d 708, 712 [1998]). Further, defendantreceived an advantageous plea agreement on the last day of the People's case, and"nothing in the record casts doubt on the apparent effectiveness of counsel" (People vFord, 86 NY2d 397, 404 [1995]). Inasmuch as the evidence at the hearing supportsthe court's determination that defendant knew about the letters before he pleaded guilty,we conclude that the failure of the motion attorney to use the letters in further support ofthe motion to withdraw the plea, which was based upon allegations that trial counselcoerced him into pleading guilty, did not deprive him of meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to defendant's contention, the court did not abuse its discretion in refusingto recuse itself from conducting the hearing on remittal. The court's determination that itcould be impartial was solely a matter of discretion, and there is no basis on this record todetermine that the court abused its discretion (see People v Moreno, 70 NY2d403, 405-406 [1987]; People vVotra, 104 AD3d 1160, 1160 [2013]; People v Bedell, 84 AD3d 1733, 1733 [2011], lvdenied 17 NY3d 857 [2011]).
Although defendant preserved for our review his contention that the court erred inrefusing to remove his wrist shackles during the hearing on remittal, he failed to preservefor our review his further contention that the court erred in failing to articulate a findingof necessity that he remain in leg irons (see generally People v Robinson, 49 AD3d 1269, 1270[2008], lv denied 10 NY3d 869 [2008]), and we decline to review that contentionas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Evenassuming, arguendo, that defendant correctly contends that he had the right to be free ofwrist shackles in this postconviction hearing (cf. People v Best, 19 NY3d 739, 743 [2012]), wenevertheless conclude that the court's error in failing to articulate a finding of necessity tofree only one of defendant's wrists from the shackles is harmless beyond a reasonabledoubt because the error " 'did not contribute to the [decision] obtained' " (People v Clyde, 18 NY3d145, 153 [2011], quoting Deck v Missouri, 544 US 622, 635 [2005]).
We reject defendant's contention that the trial prosecutor was disqualified fromtestifying at the hearing based on the advocate-witness rule inasmuch as that prosecutordid not represent the People at the hearing (see generally People v Paperno, 54NY2d 294, 299-300 [1981]). Defendant failed to demonstrate a " 'substantial likelihoodthat prejudice resulted' " from the trial prosecutor's participation in a prehearingconference wherein the District Attorney, who represented the People at the hearing,opposed defendant's request for an adjournment (see People v Shoga, 89 AD3d 1225, 1230-1231 [2011],lv denied 18 NY3d 886 [2012]). Finally, defendant did not seek the appointmentof a special prosecutor and thus failed to preserve for our review his contention that thecourt erred in failing to appoint one (cf. id. at 1230). Present—Scudder,P.J., Centra, Peradotto and Carni, JJ.